Denial of Request During Trial For Advisory Counsel to Assume Full Representation was Harmless Error

State v. Chavez-Nelson, Minn.S.Ct., 7/6/2016.  Mr. Chavez-Nelson is serving a life sentence without possibility of release for a conviction of first degree premeditated murder.  About a week before trial Mr. Chavez-Nelson discharged his appointed counsel; he said that he disagreed with them about trial strategy.  Mr. Chavez-Nelson also asked the trial court for a continuance so that he could retain private counsel; the trial court denied that request, and declined to appoint new counsel to represent him.  On the first day of trial, the trial court appointed attorneys who had no prior involvement with Mr. Chavez-Nelson's case as advisory counsel.

The very next day, the jury panel having spent the rest of the first day completing a questionnaire, Mr. Chavez-Nelson asked that his advisory counsel assume full representation of his case.  The trial court saw this as a backdoor attempt to obtain substitute counsel and denied the request.  The court did repeat what it had been saying the previous day that it would reappoint Mr. Chavez-Nelson's original appointed counsel.

On the third day of jury selection Mr. Chavez-Nelson said that he would be open to having his original counsel reappointed to represent him.  The court did just that at the end of jury selection the following day and then gave those off-again, on-again attorneys a short continuance to gear back up for trial.  Original counsel represented Mr. Chavez-Nelson for the remainder of trial.

Mr. Chavez-Nelson complained on appeal about the denial of his request for advisory counsel to assume full representation of his case.  He pointed to the rule under which the trial court appointted advisory counsel, Rule 5.04, subd. 2(2)(b), which says that when advisory counsel has been appointed"

“because of concerns about delays in completing the trial, the potential disruption by the defendant, or the complexity or length of the trial,” advisory counsel will assume full representation of the defendant if the defendant “requests advisory counsel to take over representation during the proceeding.”

Under this rule Justice G. Barry Anderson said that Mr. Chavez-Nelson had a right to request that advisory counsel assume full representation and the trial court's denial of that request was an error.  The Justice suggests that this would not have been the case had advisory counsel been appointed under subdivision 2(1) of this rule.  This rule says that the trial court may appoint advisory counsel because of concerns about the fairness of the process but it does not include the language about having advisory counsel take over at a defendant's request.

The court then had to decide whether this error in denying the request that advisory counsel assume full representation entitled Mr. Chavez-Nelson to a new trial.  Justice Anderson concluded that this error was not a structural error, at least where the only time that Mr. Chavez-Nelson was not represented was during jury selection, which was more or less by his choice. Ignoring this rather dubious distinction for now, it suggests that had the request come at a different point in the trial the court may have looked at the error differently.  The court went on to conclude that the error was harmless.

An attempt Conviction Does Not Authorize Conditional Release Term

State v. Noggle, Minn.S.Ct., 7/6/2016.  Mr. Noogle pleaded guilty to attempted third-degree criminal sexual conduct.  The attempt statute is Minn.Stat. 609.17.  The Complaint referenced the CSC statute that Mr. Noggle attempted to commit but that Complaint did not charge him with that offense. In the ensuing eight years Mr. Noggle worked his way up from a stay of adjudication to a stay of imposition to an executed sentence.  When the court executed the sentence it also imposed a ten year conditional release term.  Mr. Noggle challenges this conditional release term.

Justice G. Barry Anderson looks at the conditional release statute, Minn.Stat. 609.3455, subd. 6, and sees that attempted third degree criminal sexual conduct is not one of the enumerated statutes that trigger the conditional release term.  Here's what the statute says:

Subd. 6. Mandatory ten-year conditional release term. Notwithstanding the statutory maximum sentence otherwise applicable to the offense . . . when a court commits an offender to the custody of the commissioner of corrections for a violation of section 609.342, 609.343, 609.344, 609.345, or 609.3453, the court shall provide that, after the offender has been released from prison, the commissioner shall place the offender on conditional release for ten years.

Caught by its own obsessive insistence of looking to "the plain language of the statute" the court has no choice but to reverse the lower court's pronouncement of the conditional release term.  

The court resoundingly rebukes the court of appeals for saying that a conviction for an attempt crime is also a violation of the crime attempted.  The court also rejected the notion that an attempt is a "sentence modifier" rather than a crime distinct from the attempted offense.  As long ago as 1980 the court had declared that the crimes of attempt and conspiracy were separate crimes.  State v. Olkon, 299 N.W.2d 89 (Minn. 1980).

Fourteen Day Untimeliness Claim To Have Presented Case to Grand Jury Rejected

State v. Vang, Minn.S.Ct., 7/6/2016.  The state charged Mr. Vang with second degree intentional murder.  Mr. Vang twice offered to plead guilty to that charge, the second time to serve the statutory maximum sentence. The state rejected both offers.  One hundred fifty days later the state presented the case to a grand jury, which indicted Mr. Vang on first degree premeditated murder charges.  Following a bench trial the court found Mr. Vang guilty and sentenced him to life without possibility of release.

Mr. Vang had asked the trial court to dismiss the indictment as untimely under Rule 8.02, subd. 2.  He said that when the court amended the rules of criminal procedure back in 2009 it actually changed the rule notwithstanding the claim of the rules committee that it was only making stylistic and formatting changes.  Here's what the rule said before the 2009 amendments:

If the offense charged in the complaint is a homicide and the prosecuting attorney notifies the court that the case will be presented to the grand jury, or if the offense is punishable by life imprisonment, the presentation of the case to the grand jury shall commence within 14 days from the date of defendant’s appearance in the court under this rule . . . .

And here's what the rule said after the amendments:

If the complaint charges a homicide, and the prosecuting attorney notifies the court that the case will be presented to the grand jury, or if the offense is punishable by life imprisonment, the defendant cannot enter a plea at the Rule 8 hearing.

Presentation of the case to the grand jury must commence within 14 days from the date of the defendant’s appearance in the court under this rule, and an indictment or report of no indictment must be returned within a reasonable time. If an indictment is returned, the Omnibus Hearing under Rule 11 must be held as provided by Rule 19.04, subd. 5. 

Mr. Vang said that 2009 amendments changed the rule by triggering the fourteen day deadline in not one but now two instances:  (1) notice under the first sentence; or (2) appearance under this rule. Justice Lillehaug rejects this interpretation.   The Justice said that the two sentences must be read together and that all conditions contained within the two sentences must be met in order to trigger the fourteen day deadline.  That is, the complaint must charge a homicide, the prosecutor must have notified the court of its intent to present the case to the grand jury or the offense must be punishable by life imprisonment, and the defendant must have made an appearance under Rule 8.  And besides, the court said in 2009 that it was not making any substantive changes to the rules and so that's that.

Mr. Vang also argued that he received ineffective assistance of counsel because counsel did not insist on scheduling a plea hearing despite the prosecutor's rejection of his plea offers.  The court rejects this claim, agreeing with the state and the trial court that the prosecutor could have thwarted such action by either dismissing the complaint or by filing an amended complaint that charged first degree murder.

Juvenile Traffic Offenders Placed on Probation Are Not "Dependent on a Juvenile Court" For Special Immigrant Juvenile Status

In the Matter of the Welfare of:  A.S., Juvenile, Minn.Ct.App., 7/5/2016.  A.S. was born in Mexico.  To avoid beatings and other "punishments" at the hands of both his parents and grandparents back in Mexico he came to the United States and moved to Minnesota.  At age 17 he was cited for underage drinking and driving, a juvenile traffic offense.  The juvenile court stayed adjudication and placed A.S.on probation for up to twelve months on certain conditions.

A.S. moved for findings that would allow him to apply for "special immigrant juvenile" status.  SIJ status provides a means for abused, neglected and abandoned immigrant youth to obtain lawful permanent residence and a path to citizenship under federal law.  A requirement is a state court finding that the immigrant either has been "declared dependent on a juvenile court" or has been "committed to, or placed under the custody of" a state agency or department or an individual or entity "appointed by a [s]tate or juvenile court.  The juvenile court declined to make such findings, concluding that merely being placed on probation does not meet the requirement that the immigrant be "dependent on a juvenile court." Nor does it mean that the immigrant has been committed to or placed under the custody of a state agency, in this case the probation department.

The court of appeals affirms the juvenile court's decision.  A.S. gets caught in the trap created by the exclusion of "juvenile traffic offenses" from the definition of "delinquent child."  The juvenile court never placed A.S. in foster care or in a similar setting, nor was A.S. placed in a guardianship.  Without any real guidance on identifying which dispositions may result in "dependency on a juvenile court" the court just says this isn't one of those instances.

Ballot Mutilation is a General Intent Crime

State v. Shane, Minn.Ct.App., 7/5/2016.  The state charged Mr. Shane with damaging, defacing or mutilating a ballot, which is apparently a crime.  Minn.Stat. 204C.06, subd. 4(b).  He wanted the trial judge to instruct the jury on the defenses of mistake of law and reliance on an official government statement.  The trial judge concluded that the crime was a general intent crime and that the two defenses were only available to specific intent crimes.

Mr. Shane is or was an elected "township supervisor" for Wanamingo, Minnesota.  Following an election at a township meeting to elect another township supervision the suggestion was made to burn the ballots.  Mr. Shane volunteered to light the match, which apparently is in violation of a law that requires that ballots for such elections needed to be preserved for some amount of time. During another meeting there was conflicting advice given about whether the ballots could be destroyed. When Mr. Shane did destroy them the state charged him with ballot mutilation.

The court of appeals concludes that the defense of mistake of law was not available to Mr. Shane.  However, the reliance instruction should have been given even for a general intent crime.  However, because Mr. Shane actually got conflicting advice about the legality of destroying the ballot no reasonable jury could have concluded that he acted in reliance on advice of an official government source.

Where Sole Reason to Revoke Probation is Termination From Drug Court the Drug Court Judge Can't Preside Over the Revocation Hearing

State v. Cleary, Minn.Ct.App., 7/5/2016.  A term of Mr. Cleary's probation of an 81 month prison sentence for second degree drug sales was to enroll and complete the local drug court.  When Mr. Cleary told the drug court team that he'd injured his hand while at work fellow drug court participants told the team that this wasn't true and that he'd hurt his hand during a fight.  Inasmuch as this was his seventh violation of drug court rules the team bounced him from the program.

A probation violation report followed shortly thereafter.  Because the drug court judge was to hear the probation violation Mr. Cleary moved to have that judge disqualified.  He argued that this judge had been privy to confidential drug court team discussions and to the decision to terminate him from the program.  And, only the drug court judge got to read the journals that each participant was required to maintain.  The chief judge denied the motion to disqualify.  The judge then revoked Mr. Cleary's probation.

The court of appeals reverses and returns the case back to the trial court for a do-over before a different judge.  The court points out that among the safeguards to which a probationer is entitled is the right to a revocation hearing before a "neutral and detached" judge. Gagnon v. Scarpelli, 411 U.S. 778 (1973).  A judge also should not preside at a judicial hearing if the judge's impartiality might reasonably be questioned.  Minn.R.Jud.Conduct 2.11(A).  A special courts judge is "deep into the weeds" of each participant's lives, reading private journals, discussing other confidential information - like drug assessments, mental health assessments - with the team, throwing parties for successes.  The very idea that the same drug court judge could ignore all that in fact or in appearance during a revocation hearing is so preposterous it beggars the question why the state fought this:

In the present case “the risk of injustice to the parties in the particular case” and “the risk of undermining the public’s confidence in the judicial process” persuade us that reversal is necessary to correct the error. Liljeberg, 486 U.S. at 864, 108 S. Ct. at 2205. The state took no position before the chief judge of the district court on the motion to remove the drug court judge from the probation revocation hearing. As such, we conclude that the risk of injustice to the state in this case is minimal. On the other hand, were we not to reverse and remand this case, the risk of injustice to appellant would be high because of the appearance of partiality and appellant’s liberty interests at stake. Appellant has a due-process right to a neutral and detached decision-maker. And reversal would also strengthen the public’s confidence in an impartial judicial process for drug court probationers.

No Abuse of Discretion Permitting State to Reopen it's Case To Prove Essential Element In Response to Defense Motion For Judgment of Acquittal

State v. Thomas, Minn.Ct.App., 7/5/2016.  In a run of bad karma Mr. Thomas found himself asleep at 4:00 a.m. behind the wheel of a Ford F250 pickup with the motor running.  He was sleeping off four Crown Royals with beer chasers that he'd consumed earlier. The cops arrested him for a gross misdemeanor DWI offense after he failed several field sobriety tests.

Things began to look up for Mr. Thomas at trial, however.  That's because the state rested its case without proving up the certified copies of Mr. Thomas' prior convictions which the state needed for the gross misdemeanor.  Defense counsel moved for a judgment of acquittal whereupon the state asked to reopen its case.  The trial court took a recess to ponder the defense motion which gave the state time enough to realize that it needed to ask to reopen its case to put in the convictions.  When the judge retook the bench the court denied the motion for a judgment of acquittal "at the same time" as it granted the state's request to reopen:

The district court denied Thomas’s motion for judgment of acquittal at the same time that it granted the state’s motion to reopen. Relying on caselaw and the relevant rule of criminal procedure, the district court determined that it had discretion to allow the state to reopen its case and present the omitted evidence. The district court also found that the missing evidence was not a surprise to the defense, nor was it cumulative; the missing evidence involved a controlling issue; and, the state did not have an improper purpose. Also, the district court noted that, even if Thomas’s motion prevailed, the state could likely amend to a misdemeanor charge.

Easy come, easy go.  

The criminal rules say that the trial court may allow any party to reopen its case to offer additional evidence.  Minn.R.Crim.P. 26.03, subd. 12(g).  The use of "may" gives the trial court discretion so its ruling is subject to an abuse of discretion standard.  Mr. Thomas, however, said that there is no discretion in his situation where he'd first moved for the judgment of acquittal.  Everyone agreed that it is impermissible for the trial court to delay ruling on that motion. State v. Penkaty, 708 N.W.2d 185 (Minn. 2006).  Mr. Thomas pointed to a Connecticut case, State v. Allen, 533 A.2d 559 (Conn. 1987) to support his argument that a court can't permit the state to reopen its case in response to a motion for a judgment of acquittal. The Connecticut court said it would simply be unfair to penalize the defense for bringing the defect in the state's case to the court's attention prior to verdict if the state could just reopen it case.  And, indeed, had Mr. Thomas awaited the verdict and then moved for an acquittal notwithstanding the verdict the state (and the appellate courts) would have screamed "Invited Error!"and sent Mr. Thomas packing.

So, it's an abuse of discretion standard.  State v. Caine, 746 N.W.2d 339 (Minn. 2008) sets out factors for the trial court to consider:

In Caine, the supreme court identified three factors: (1) when the request was made, (2) whether the evidence was material, not cumulative, and concerned a controlling issue; and (3) whether there was an improper purpose for failing to produce the evidence earlier.

 The court rather timidly cautions the state that it asks to reopen its case in these circumstances "at their peril" but their heart isn't really in it.

For Mr. Thomas:  Gotcha.

 

Supreme Court Rejects First Amendment Facial Challenge to Solicitation Statute

State v. Washington-Davis, Minn.S.Ct., 6/29/2016.  Mr. Washington-Davis challenges the statute that criminalizes the promotion of prostitution and the solicitation of individuals to practice prostitution, Minn.Stat. 609.322, subd. 1a(1)-(2) as facially overbroad in violation of the First Amendment.  He also challenged the accomplice liability jury instructions and the sufficiency of the evidence.  The court of appeals had already upheld the convictions, thereby rejecting the constitutional and other claims.  Read about that here.  Chief Justice Gildea also rejects all of these challenges. Here's how the court described the scheme:

The actions forming the basis for Washington-Davis’s convictions occurred between September 2010 and July 2012. During this period, Washington-Davis was involved in a family-operated prostitution scheme that was run out of his uncle’s house in St. Paul. Washington-Davis, his brother, Otis,2 and his uncles were all involved. The men solicited women into prostitution first by pursuing romantic relationships with them. Once each relationship was established, the men would typically tell each woman that she could make a lot of money through prostitution. After luring them into the prostitution scheme, Washington-Davis or one of his family members would take photos of the women and post advertisements depicting the women online, arrange for the women to engage in sex acts for hire at the St. Paul house, drive the women to meet customers on “out-calls” away from the St. Paul house, and keep most, if not all, of the money the women made. Although each woman reported primarily to one family member, the other family members assisted with placing ads and transporting the women to out-calls. This case involves Washington-Davis’s conduct with respect to five women: J.M., B.R., S.A., C.B., and T.B. Four of them (J.M., B.R., S.A., and C.B.) testified at trial.

As he did in the trial court and court of appeals Mr. Washington-Davis said that the statute applies to people who promote or solicit consenting adults to participate in constitutionally protected films or photographs involving sexual contact.  The state countered that the statute does not reach protected First Amendment speech unless there is a showing that such a film or photograph is produced for the purpose of satisfying the actor's sexual impulses.  The Chief concludes that the hiring of adults to perform or pose in a sexually explicit film or photograph is done for the purpose of making a film or photograph and "will not usually violate the statute."  Such hiring - speech - falls under the statute only if the state can show that the purpose in hiring was to sexually gratify the performers. The court leaves to another day just how to make this differentiation.  

More troubling is that the court doesn't really answer the question whether such hiring is or is not protected speech.  That's because after listing the arguments pro and con the court then assumes that the statute does restrict some protected speech and then moves on to the question whether such restrictions are substantially overbroad "in relation to the statute's plainly legitimate sweep."  Not just substantial but "real."  The court can find no evidence in the record that any protected speech is, in fact, being chilled or likely to be chilled as a result of the promotion and solicitation statute. Whether any film producer is in fact being prevented from soliciting performers for pornographic films is purely speculative on this record.  

On the accomplice liability jury instruction the state conceded that the instruction that the trial court gave was wrong under State v. Milton, 821 N.W.2d 789 (Minn.2012).  The problem was, though, the instruction actually given went beyond what Milton requires because it told the jury that the state had to prove that Mr. Washing-Davis, himself, acted with the specific purpose of either soliciting a specific victim to practice prostitution or promoting the prostitution of a specific individual.  The actual burden is to prove that Mr. Washington-Davis knew that a codefendant planned to commit a crime and intended his actions to further it.

Finally, the court had no difficulty concluding that the state's evidence had been sufficient to uphold the convictions.

Despite a Slew of Leading Questions to Establish the Elements of Premeditated Murder Plea was Valid

Nelson v. State, Minn.S.Ct. 6/22/2016.  Mr. Nelson pled guilty to first degree premeditated murder for the stabbing death of Vinessa Lozano; he is serving a life sentence without possibility of release. A court-ordered competency examination revealed that he has Asperger's Disorder:

 The examiner found that Nelson was naïve about the criminal justice system, having “absolutely no experience.” The examiner concluded that “Nelson [would] need quite a bit of assistance from his attorney, perhaps more than the average defendant. His degree of naivety coupled with his characterological avoidance, passivity, and lack of interpersonal skills, will require a more active role on the part of his lawyer.” 

 A second examiner concluded that although Mr. Nelson did not have a mental illness defense he believed that the offense would not have occurred but for Mr. Nelson's Asperger's Disorder.  Mr. Nelson entered a guilty plea to the top count of first degree premeditated murder:

When the district court asked Nelson whether he believed Lozano was going to die from the stab wounds, Nelson stated, “I wasn’t sure,” and noted that “it’s not something that I’ve done before.” Nelson added, “[i]t looked serious but I’m not a doctor.” When asked about whether it was his intention to kill Lozano when he stabbed her, Nelson responded, “I think it was . . . just to get her hurt and then . . . to eat with her but it . . . went too far.” When asked if it was his plan to stab Lozano when he began thinking about bringing the knife to work, he told the court that he had “just lashed out irrationally” and that the incident “just happened.”

Well, no one thought this was enough for a valid plea so the lawyers met up with the judge in chambers to cook up a list of questions for Mr. Nelson and the answers.  After a trip to the woodshed with his lawyer, the following colloquy occurred:

THE COURT: Mr. Nelson, at some time during this event, I understand that [D.O.] came outside, is that correct?

NELSON: Yes.

THE COURT: And what did you do?

NELSON: I saw him and shooed him away.

THE COURT: You chased him away?

NELSON: Yes.

THE COURT: All right, and then did you go back after that to continue what you were doing?

NELSON: Yes.

THE COURT: In other words, to continue stabbing Vinessa, is that right?

NELSON: Yes.

THE COURT: And is it true that at one point she grabbed the knife to try to stop you?

 NELSON: Well, that was before [D.O.] appeared.

THE COURT: Before [D.O.] appeared she grabbed the --

NELSON: Yes.

THE COURT: -- knife to try and --

NELSON: Yes.

THE COURT: All right, and did you pull the knife back away from her and keep stabbing her?

NELSON: Yes.

THE COURT: And by doing that, isn’t it -- you intended to kill her?

NELSON: Yes. 

The trial court then pronounced itself satisfied that it was a valid plea and Justice Lillehaug affirms.  

After a while, Mr. Nelson filed a post conviction petition asking to withdraw his plea.  He said it hadn't been entered knowingly, intelligently and voluntarily.  He complained about the "wood shedding," which his trial attorney denied occurred.  Justice Lillehaug is able to pull enough questions and answers from the record to satisfy himself and the court that Mr. Nelson had been aware of the charges and of his rights so it was easy enough to get past the knowingly and intelligently requirements.  The voluntariness requirement got a bit stickier because that gets to the accuracy of the plea.  

When the court was asking Mr. Nelson the open ended questions Mr. Nelson didn't give answers to support the plea, in particular the intention and premeditation to kill.  That's when counsel and the judge called a huddle and the next set of questions - after the wood shedding - were strickly leading questions.

See any open-ended questions here to establish the factual basis? Yes, but when Mr. Nelson gave the wrong answers everyone reverted to leading questions. The Justice not only glosses over this absence of narrative questions that would have permitted Mr. Nelson "to express in his own words what happened."  State v. Raleigh, 778 N.W.2d 90 (Minn. 2010). The court also seemingly relies upon the inadequate answers to the open ended questions - his own words - to conclude that on the entire record the plea was valid.