No Abuse of Discretion To Deny Post Conviction Petition Without Evidentiary Hearing

Morrow v. State, Minn.S.Ct., 9/21/2016.  Mr. Morrow filed this post conviction action, on time, challenging the representation that he received from his appellate counsel.  He said that appellate counsel had rendered ineffective assistance of counsel by failing to raise these five issues:

(1) the sufficiency of the evidence; (2) prosecutorial misconduct; (3) ineffective assistance of trial counsel; (4) instructional error on the driveby-shooting counts; and (5) the possible violation of a statute prohibiting multiple overlapping convictions, Minn. Stat. § 609.04 (2014).

The post conviction court denied the petition in its entirety without holding an evidentiary hearing.

To get a hearing, Mr. Morrow had to allege facts which if proved would satisfy the two requirements of Strickland v. Washington, 466 U.S. 668 (1984): counsel's performance fell below an objective standard of reasonableness, and absence appellate counsel's shoddy performance the outcome of his direct appeal would have been different.  Justice Stras jumps straight to this second requirement to affirm the summary dismissal of the petition.

Mr. Morrow had raised both a sufficiency and prosecutorial misconduct challenge in his pro se supplemental brief on his direct appeal. Appellate counsel was not obliged to take up either of those causes absent a showing that this failure "fell below an objective standard of reasonableness," which Justice Stras didn't address.  

Because the trial court did not sentence Mr. Morrow on the drive-by shooting conviction, there could be no prejudice to him as a result of any error in the court's instructions on that count.  See State v. Jackson, 773 N.W.2d 111 (Minn. 2009).

Finally, Mr. Morrow's argument that Minn.Stat. 609.04 required the trial court to convict and sentence him on the lowest degree of the offenses charged just didn't square with the language of the statute. Rather, all that the statute says is that the trial court could not have convicted Mr. Morrow of both the first and second degree murder counts for the same victim.

Testimony About some of What Defendant Said during Interrogation Does Not Authorize Defense To Introduce Entirety of Recorded Statement

State v. Robertson, Minn.S.Ct., 9/14/2016.  A jury convicted Mr. Robertson of first degree premeditated murder of Kevin Braziel.  It was the state's theory that Mr. Robertson shot and killed Mr. Robertson by mistake.  When police interrogated Mr. Robertson he denied any involvement in Mr. Braziel's death.

The state did not play Mr. Braziel's recorded statement during the trial.  Instead, the officer to conducted the interrogation testified about parts of the interview.  Although the trial court allowed defense counsel to ask this officer about other portions of the interrogation the court denied a request to play the whole thing. 

Mr. Robertson made this request under Rule 106 of the rule of evidence.  This rule says that if one side introduces a portion of a recorded statement  then the other side may be permitted to play any of the remainder of the recording "which ought in fairness to be considered contemporaneously with it."  Chief Justice Gildea said, however, that the problem for Mr. Robertson was that the state didn't introduce any of the recorded statement (or its transcript). State v. Bauer, 598 N.W.2d 368 (Minn. 1999) says just that.  It should be permissible, however, for the defense to introduce portions of the recorded interview where not doing so would mislead the jury.

Mr. Robertson raised some additional errors on appeal, none of which did the court find persuasive.

Use of Multi-County Grand Jury Procedure Survives State Constitutional Challenge

State v. Fitch, Minn.S.Ct., 8/24/2016.  Mr. Fitch shot and killed a police officer in Dakota County, then shortly thereafter got into a shoot out with officers in Ramsey County, injuring three of those officers before being shot himself.  The state convened a multi-county grand jury under the provisions of Minn.Stat. 628.41, subd. 2.  That grand jury then returned an indictment which charged Mr. Fitch with the homicide in Dakota County, and with multiple offenses in Ramsey County:  three counts of attempted murder in Ramsey County and possession of a firearm by an ineligible person.  

The statute authorized either a Dakota or Ramsey judge to convene this multi-county grand jury.  Whether by coin flip or otherwise, a Dakota judge convened one of these multi-county grand juries and designated the Dakota County Attorney's Office to attend to the care and feeding of this grand jury.   The order that impaneled the grand jury also designated Dakota County as the venue for any proceedings in the event of an indictment.  This venue designation put Mr. Fitch's prosecution on a collision course with a provision of the state constitution, Article 1, Section 6, which says that Mr. Fitch "enjoys" the right to a "public trial by an impartial jury of the county or district wherein the crime shall have been committed..."

Mr. Fitch invited this collision by attacking the indictment in two ways.  He moved to dismiss the indictment, saying that regardless of what the statute said the district court was constitutionally required to sever the Ramsey County offenses from the Dakota homicide offense because of the jury locale requirement of the aforementioned Article 1, Section 6 of the state constitution . This was an apparent if not explicit reference to the offenses that happened in Ramsey County.  Mr. Fitch also moved to sever the Dakota homicide from the Ramsey County offenses under Rule 17.03, subd 3; he relied upon two provisions of that rule:  that the Ramsey County offenses were not related to the Dakota homicide, or even if related joining the offenses for trial was too prejudicial.  

At the same time, Mr. Fitch moved to change venue because, he said, all the pretrial publicity prevented him from getting a fair trial. The trial judge took up the venue change motion first and granted it, packing everyone off to Stearns County for trial.  The trial court then took up Mr. Fitch's constitutional challenges and denied them. Then the trial court then denied the motion to sever the Ramsey County charges.  A Stearns County jury convicted Mr. Fitch of all of the charges.

Mr. Fitch appealed the rulings on his constitutional challenge and on his Rule 17.03 severance request.  The court first took up the constitutional challenge.

Justice G. Barry Anderson acknowledges that Mr. Fitch had a right to be tried by a jury from a particular county or district; the constitutional provision is about the jury pool and not about the location of trial.  With that understanding it's easy to reject any claim that Mr. Fitch had a right to either a judge or prosecuting authority from a particular county or district.  Rather, Mr. Fitch's rights under Article 1, Section 6 cannot be violated until a judge impanels a jury from a county other than the one in which the offense occurred to adjudicate the case against him.  

Addressing the right to be tried by a jury from a particular county or district, Justice Anderson says that past opinions establish that even this right is subject to at least two exceptions:  this right can be overcome where it would be difficult to identify the county or district in which the offense occurred, and where an impartial jury cannot be drawn from the county or district in which the alleged crime occurred.  The court does say that in most cases in which a multi-county grand jury returns an indictment, the district court should designate venue based on where the alleged offense occurred.  So, although the statute gives the trial judge discretion in designating the venue of charges returned by a multi-county grand jury the state constitution does impose restraints on that discretion.

So, the court is creeping perilously closer and closer to having to answer the constitutional question:  did keeping the Ramsey County charges in Dakota County violate Mr. Fitch's right to be tried by a jury of the county or district in which the crimes occurred?  The state said no, for two reasons:  because it avoids serial prosecutions, and because it would be just too traumatic and, frankly, inconvenient, for all of its witnesses to have to testify at two different trials.  Justice Anderson found these justifications for trampling on Mr. Fitch's state constitutional rights just a bit too easy and more problematic, amorphous.  The court said that under the state's rule there would be "no limiting principle for when witness convenience outweighs a defendant's rights under Article 1, Section 6 to trial by a jury of the county or district in which the crime was committed."  

By rejecting the state's only reasons to try both sets of charges in Dakota County Justice Anderson is left with no justification to deny Mr. Fitch his state constitutional right to a trial by a jury of the county or district in which the crime was committed.  Now finally face to face with the state constitutional question the court does what it is wont to do and punts it.

To do that things get a little fuzzy.  This is because, remember, at the same time that Mr. Fitch moved to dismiss the indictment on state constitutional grounds he also moved to change venue because of publicity.  This was just the out that the court was looking for.  If Mr. Fitch could not get a fair trial in "the greater Twin Cities metropolitan area" - which is what he said - then what did it matter whether he was entitled to trial in Ramsey County before a Ramsey County jury on the Ramsey County charges?  

Justice Anderson takes a breath at this point and rather sheepishly concedes in a lengthy footnote that Mr. Fitch had been asking the Dakota County court only that the homicide venue, which was initially and properly located in Dakota County, be moved out of Dakota County; while at the same time he was asking that the Ramsey charges be sent packing back to St. Paul, not as a venue change because of pretrial publicity from a properly venued action but as a recognition that under the state constitution Dakota County had no business trying the Ramsey charges in the first place.  The court also accepted Mr. Fitch's assertions to them that he had not intended to waive his right to have the Ramsey County charges tried by a Ramsey County jury.

Despite all this, Justice Anderson fudges these concessions by then noting that by requesting a change of venue Mr. Fitch was admitting that he could not receive an impartial jury trial in either county.  An "impartial" jury is one of the safeguards that Article 1, Second 6 protects.  This lets the court off the hook because it could now pronounce that because of all that publicity about which Mr. Fitch so bitterly complained he simply "did not have a right to a trial by a Ramsey County jury on the Ramsey County charges..." because that trial would not be an impartial one. As a result the court offers no guidance on how to address these thorny issues the next time up. Whew, that was close.

The court then addresses the severance motion under traditional severance jurisprudence.  The resolution of that question turns on the existence of prejudice, which in this case Mr. Fitch could not show.  Joinder is not prejudicial, the court said, if "evidence of each offense would have been admissible Spreigl evidence in the trial of the other."  State v. Conaway, 319 N.W.2d 35 (Minn. 1982). It was easy enough for the court to say that that was the case for Mr. Fitch, if for no other reason than the two sets of charges occurred roughly five miles and five hours apart.  Finding no prejudice to Mr. Fitch by denying the severance request the court does not have to rule whether the refusal to sever was error.

For DWI Prosecutions a "Hazardous Substance" May But Need Not Be Listed Under the Hazardous Substances Rules

State v. Carson, Minn.Ct.App., 9/6/2016.  For those who were wondering,  1,1-difluoroethane (DFE) is a "hazardous substance" under the DWI laws.  It is unlawful to drive while under the influence of a hazardous substance.

1,1-difluoroethane (DFE) turns out to be one of the components of those air canisters that blow all the dust out of the innards of computers.  A couple of things to know about such products: Although known as "canned air" there is no air in the products. The cans contain gases that have been compressed into liquids, something that air won't allow to happen except under really extreme temperatures.  Second,  when inhaled the gases displace oxygen in the lungs and removes carbon dioxide from the blood which causes the user a euphoric feeling.

Ms. Carson said that the state had failed to prove that she was under the influence of a "hazardous substance" which is defined as "any chemical or chemical compound that is listed as a hazardous substance in rules adopted under chapter 182 (occupational safety and health)."  DFE is not included in the chapter 182 list of hazardous substances.

However, those rules also state that the list includes the majority of hazardous substances but not all of them.  The rule further requires an employer to keep an eye peeled for the presence of other substances that are "hazardous."  

A Person "15 Years of Age or Younger" Is a Person Who Has Not Yet Attained The Age of 16.

State v. Olson, Minn.Ct.App., 8/22/2016.  The state charged Mr. Olson with four counts of violating the child solicitation statute. Unbeknownst to him, Mr. Olson communicated with an undercover cop who said that her name was "Haley" and claimed to be fourteen years of age.  When Mr. Olson arrived for his first meeting with "Haley" the cops busted him.

To convict Mr. Olson the state had to prove that he reasonably believed that he was soliciting or communicating sexually explicit material to a "child."  The statute defines a "child" as a "person 15 years of age or younger."  Mr. Olson waived a jury trial and the trial judge found that Mr. Olson reasonably believed that he was communicating with a person "under the age of sixteen."  Mr. Olson said, hold on, the statutory definition of "child" means a person who is younger than or has reached the specified fifteenth birthday and not a day older.

The court of appeals is not amused.  As usual, it hauls out various dictionaries to discover that people ordinarily express their ages in yearly intervals, so that one who is "15 years of age" might actually be 15 years and eleven months old.  If Mr. Olson's interpretation is correct, then just how is "Haley" to say how old she is on the day after her fifteenth birthday.  "Hi, I'm Haley.  I was fifteen yesterday. Today I'm not sixteen."  You get the idea.

Confession is Voluntary and Evidence of Premeditation is Sufficient

State v. Cox, Minn.S.Ct., 8/24/2016.  Mr. Cox and his buddy Mr. Kurr went to rob Mr. Moran whom they believed was a drug dealer and thus likely to have a lot of both drugs and cash laying around his house.  When Mr. Moran failed to obey Mr. Cox's command to take his hands out of his pockets Mr. Cox first shot Mr. Moran in the thigh and then three times in the chest.  A jury convicted Mr. Cox of first degree premeditated murder, two counts of first degree intentional felony murder and first degree aggravated robbery.  On appeal Mr. Cox challenged the admissibility of his confession, and the sufficiency of premeditation to uphold the first degree premeditated murder conviction.

Mr. Cox said that his confession was not voluntary for three reasons:  the cops promised that in exchange for his confession they would look into his brother's death; the cops assured him that they could influence the county attorney's charging decision; and a "small town Scott County jury" would be more lenient if presented with a full confession.  Justice Dietzen rejects each of these assertions in turn.  The Justice says that because it was Mr. Cox who suggested that he would trade his confession for a promise to look into his brother's death his will was hardly overborne.  While it is improper for cops to suggest that they can influence prosecutors in favor of a defendant, all that the cops did here was to point out that the prosecutors would be "impressed" by his confession.  Finally, the crack abou "small town juries" being more lenient was "simply a prediction.

Two Justices, Chief Justice Gildea and Justice G. Barry Anderson, dissented from the majority's conclusion that the state had sufficiently proven premeditation.  Here's what Justice Dietzen says that the state proved that support a reasonable inference that Mr. Cox premeditated Mr. Moran's murder, which facts are inconsistent with a reasonable inference that his conduct was the result of a rash impulse:

The circumstances proved taken together are as follows. Cox planned the armed robbery of Moran’s home, including the potential murder of those he encountered, to accomplish his criminal objective. Cox practiced shooting the handgun, and brought a fully loaded handgun, extra bullets, and a shooting glove with him so that he was ready to murder the occupants of the home if necessary. Cox unlawfully entered Moran’s home, and told B.M. that he might kill everyone in the home if B.M. lied to him. When Moran arrived Cox stated that Moran is “the one I’m looking for.” Moran’s cell phone rang and Cox ordered Moran to show his hands. When Moran ignored Cox’s command to “put down the phone,” Cox shot Moran in the leg shattering his femur. Forty seconds elapsed between the first command and the first shot. Moran was wounded and unarmed. When Moran ignored the second command, Cox shot Moran in the chest causing him to stumble and fall. Cox shot Moran in the chest two more times.

The dissenters anguish that the majority has eviscerated the intentional murder statute:

The court’s holding in this case will make a premeditated murder out of virtually any armed robbery that results in a death. More generally, an affirmance here of the premeditated murder conviction may leave few circumstances that fit the statutory definition of intentional murder. Given the legislative decision to distinguish between an intentional murder and a premeditated murder, that cannot be the law. The circumstances as a whole in this case are not consistent only with the theory of a premeditated murder and inconsistent with all other rational theories. As a result, I would vacate the conviction for first-degree premeditated murder and remand this case to the district court for further proceedings.