Assisted Suicide Statute is Neither Facially Nor As Applied Unconstitutional

State v. Final Exit Network, Inc., Minn.Ct.App., 12/19/2016.  The Minnesota Supreme Court has construed the assisted suicide statute to permit prosecution for assisting suicide, but not for advising and encouraging suicide.  State v. Melchert-Dinkel.  Someone who wishes to partake of the services that Final Exit Network provide must first survive, so to speak, a vetting process in order to become a "member." The guys at Final Exit will then assign a member an "exit guide" to do such things as direct the member where to purchase the gear that will be needed to effectuate the suicide.  The exit guide rehearses the procedure with the member, attends the procedure and then secrets away the gear.  The exit guide never physically assist the member in ending his or her life.

Melchert-Dinkel said that the state can prosecute someone for speech or conduct that provides another person with what is needed for the person to commit suicide.  The trial court instructed the jury that:

To “assist” means that [Defendant] enabled [D.D.] through either physical conduct or words that were specifically directed at [D.D.] and that the conduct or words enabled [D.D.] to take her own life. One has not “assisted” where one has only expressed a moral viewpoint on suicide or provided mere comfort or support. 

Relying upon Melchert-Dinkel the court of appeals upholds Final Exit's conviction, rejecting both facial and as applied First Amendment challenges to the statute.  

Court of Appeals affirms grant of new trial because an actually biased juror who had not been adequately rehabilitated served on the jury.

Ries v. State, Minn.Ct.App., 12/19/2016.  It is structural error, requiring automatic reversal, for a trial court to permit a biased juror to sit on a jury.  State v. Logan, 535 N.W.2d 320 (Minn. 1995); State v. Fraga, 864 N.W.2d 615 (Minn. 2015).  Here, the question wasn't whether a juror who served on the panel was biased, she was.  Rather, the question was whether the trial judge had adequately rehabilitated her.

The trial judge denied Mr. Ries’s motion to strike for cause a potential juror who said that she would side with a police officer’s testimony in large part because of her work as a 911 operator; she considered herself as having the officers’ backs.  The trial judge purported to rehabilitate this potential juror and at trial was satisfied that he had done so, allowing the juror to serve.  Mr. Ries did not use one of his remaining peremptory challenges to remove her.  The jury found Mr. Ries guilty.  

Mr. Ries did not appeal his conviction, but eventually he did file a post-conviction petition in which he complained about the seating of this biased juror.  (He also complained, unsuccessfully,  about a suppression ruling.)  Following a post-conviction hearing, however, the post conviction judge (who was the same as the trial judge) reversed himself and granted a new trial because this juror had expressed actual bias and had not been rehabilitated after all.  

The Court of Appeals upheld the reversal of the conviction and grant of a new trial.  The court agreed that this juror had not been rehabilitated. The court reviewed past cases that had addressed the rehabilitation question, pointing out what had been deemed to be rehabilitation and what had not. 

Of equal importance the court also said that it was not necessary for Mr. Ries to have used all of his peremptory challenges in order to preserve the juror bias issue for appeal.  The court relied upon a U.S. Supreme Court opinion for support for that pronouncement, U.S. v. Martinez-Salazar, 528 U.S. 304 (2000).

Court Finds Probable Cause to Support Prosecution Under Actual Possession Theory For Narcotics Found Near Where Defendant Crashed During Police Chase

State v. Barker, Minn.Ct.App., 12/12/2016.  Acting on a tip that Mr. Barker would be returning from Chicago with a load of cocaine and marijuana the cops set up surveillance for his eventual return to the state and apprehension.  On the return drive the informant notified the cops that during a pit stop he had seen Ecstasy pills and marijuana in a white plastic bag in the trunk of the car that Mr. Barker was driving.   When officers tried to stop Mr. Barker's car once he was back in Minnesota Mr. Barker fled, eventually crashing the car.  Officers recovered narcotics in the vehicle, but they also recovered narcotics in a field near where the crash occurred.

The state charged Mr. Barker with multiple counts of possession of narcotics.  The narcotics in play here are the ones the cops found in the ditch.  The state conceded that Mr. Barker did not have constructive possession of these narcotics, but insisted that he had actual possession of them.  The trial court disagreed and tossed the charges for lack of probable cause.  The state took a pretrial appeal and the court of appeals reverses.

The court says that just because an item isn't in a defendant's physical possession at the time of apprehension does not preclude prosecution for actual possession.  The court cited State v. Olhausen, 681 N.W.2d 21 (Min. 2004).  Olhausen agreed to sell an undercover officer one pound of methamphetamine.  Olhausen handed the officer the bag of what the cop believed to be meth, but then took it back and fled.  The supreme court upheld the subsequent conviction for sale and possession of the meth.  The problem is, however, that no one in Olhausen cared a whit about the method of possession.  Rather, the case turned on the absence of any forensic testing of the alleged methamphetamine and on Olhausen's role in preventing that testing.  Applying Olhausen here is thus a bit of a stretch.

Having thus extended Olhausen's holding, the court is then more than confident that there was probable cause to charge Mr. Barker with the drugs found in the ditch.  Along the way, two tidbits:  first, the court applied, without actually holding that it was necessary, the heightened two-step circumstantial evidence standard of review to a probable cause determination:

We have not previously applied this heightened circumstantial evidence test to a probable cause challenge, and we do not decide here that it must be applied in such cases. Nevertheless, we apply this test out of an abundance of caution.

Second, the court pretty strongly signals that the trial court should not instruct the jury on constructive possession  except when the court is convinced that the state cannot prove actual or physical possession. State v. Arnold, 794 N.W.2d 397, 400 (Minn.Ct.App. 2011):

[P]resumably because Arnold was not in physical possession of the drugs when apprehended, the district court instructed the jury only on constructive possession. Id. at 399, 401. On review of Arnold’s conviction, we emphasized that “[t]he purpose of the constructive-possession doctrine is to include within the possession statute those cases where the state cannot prove actual or physical possession.” Id. at 401 (quotation omitted). Although it was “clear” to us that the “evidence of physically handling the drugs prove[d] physical possession,” the jury had been instructed on constructive possession, and we reluctantly addressed the defendant’s sufficiency challenge under that doctrine. Id. at 400-01.

Because Predatory Offender Registration As A Result of a Conviction is a "Collateral Consequence" Failure to Advise Regarding It is Not Ineffective Assistance of Counsel

Taylor v. State, Minn.S.Ct., 12/7/2016.  Mr. Taylor said that his trial counsel had provided ineffective assistance of counsel by not advising him that his conviction for a felony domestic assault would trigger a requirement that he had to register under the predatory offender statute.  He said that just as immigration consequences are not "collateral" neither is registration.  Justice G. Barry Anderson rejects this notion:

The statutory duty to register as a predatory offender is a collateral consequence of a guilty plea. Because a criminal defendant need not be warned of a collateral consequence before entering a guilty plea, the defense attorney’s failure to advise the appellant of the duty to register as a predatory offender did not violate the appellant’s right to effective assistance of counsel under the United States and Minnesota Constitutions.

Not much more to say.

 

A Rule 27.03 Motion To Correct Sentence Is Not Subject to Post Conviction Limitations Term

Reynolds v. State, Minn.S.Ct., 12/7/2016.  Mr. Reynolds pleaded guilty to failing to register as a predatory offender.  A year and a half later, the trial court modified Mr. Reynolds' sentence to include a ten year conditional release term, apparently because he had been assigned to a risk level III.  Four years after that, Mr. Reynolds moved under Rule 27.03, subd. 9 to correct his sentence; he said, and no one disputed his assertion, that the conditional release term could only be imposed if he had either admitted to the risk level III status or a jury had found that status.  A Blakely error.

The district court treated the Rule 27 motion as a post conviction petition and said that it was untimely under the limitations provisions. The court of appeals reversed.  Chief Justice Gildea affirmed the court of appeals.  The court agreed that imposition of the conditional release term in violation of Blakely was not authorized by law.  The court also rejected, on separation of powers, the state's fall back argument that the legislatively enacted two year limitations period for post conviction petitions applied to a judicially created rule of criminal procedure.  And, the court declined to accept the statutory limitations period as a matter of comity:

Based on this analysis, interpreting the exclusivity provision in Minn. Stat. § 590.01, subd. 2, to require application of the postconviction statute’s limitations period to Reynolds’s claim unconstitutionally encroaches on the judicial sentencing power. Even with these constitutional deficiencies, however, we may accept the limitations period in the postconviction statute as a matter of comity. See Losh, 721 N.W.2d at 892. We decline to do so. We previously recognized the importance of Minn. R. Crim. P. 27.03, subd. 9, and refused to acquiesce to a statute as a matter of comity that “could limit a defendant’s ability to obtain relief from an illegal sentence under Minn. R. Crim. P. 27.03, subd. 9.” See Losh, 721 N.W.2d at 892. We reach the same conclusion in this case.

Court Expands Sweep of Assault-Harm to Include All Volitional Acts

State v. Dorn, Minn.S.Ct., 12/7/2016.  Ms. Dorn pushed D.E. when he accused her of being a drug dealer.  It wasn't a hard push; he may have just sort of leaned back then returned to the upright position, like those air-inflated Christmas decorations.  Ms. Dorn then pushed * again.  Still not a hard push but this time D.E. lost his balance, may have stumbled and fell into the embers of a nearby bonfire. The state charged Ms. Dorn with assault in the first degree - D.E.'s injuries met the definition of "great bodily harm - and a jury convicted her.  The judge put her on probation forever instead of sending her to prison.  The court of appeals affirmed the conviction.

Ms. Dorn said what she did wasn't an assault because she didn't intentionally harm D.E. and because her actions did not directly cause D.E.'s injuries.  She said that the statute required proof of some intent to harm D.E.  Justice McKeig rejects this assertion. Assault/harm requires that an individual assault another and inflict great bodily harm.  "Assault" in this instance means the intentional infliction of bodily harm upon another. 

Now, Minnesota's assault statute has always been incredibly broad; it is now breath takenly so.  Justice McKeig has replaced the supposed mental state required of criminal assault - intentional infliction of bodily harm - with any volitional act upon another person.  If that volitional act results in a common law "battery" - the intentional application of unlawful force against the person of another - then the assault statute's requirements are met.  The extent of injury then determines the degree of assault that has been committed.  This is so even when, apparently, the resulting harm from the battery is totally unwitting.  Mischiefly the Justice offers absolutely no guidance on what the outer limits - if, indeed, there are any - of this sweeping expansion of the assault statutes may be. So the next time you think about giving a colleague a congratulatory slap on the back for a job well done, reconsider, because you've just committed a criminal assault. If your colleague isn't paying enough attention, stumbles back and hits her head on, say, a concrete wall, you're off to prison for a felony assault.

Test of Laser That Establishes Accurate Measurement of Known Distance Satisfies Foundation Requirement For Introduction of Speed Evidence

State v. Olson, Minn.Ct.App., 12/5/2016.  An officer ticketed Mr. Olson for speeding, based upon the officer's use of a handheld laser device. Mr. Olson challenged the foundational reliability of the laser device; he said that Minn.Stat. 169.14, subd. 10(a)(4) allows an officer to testify about a reading from a "speed-testing device" only if the officer first establishes that he performed an external test to verify that the device was functioning reliably.  Because the officer had only - and half-assed at that according to Mr. Olson - tested the laser's distance measurement the statute's requirements hadn't been met.  That's because speed is a measurement of both distance and time, and the officer performed no tests to determine that the laser was accurately measuring time.  Instead, the officer limited his testing to measuring a known distance to a stationary object.

Whew.  

The court of appeals said that Mr. Olson didn't understand just how a laser works.  The court said that the laser measures distance "specifically based on the constant speed of light and based on the time it takes for a pulsed, infrared light to reflect off the target and return to the device.  If the laser gets a known distance right then necessarily it have got the time right as well.

Expressions of Hope That An Individual Will Come To Harm Are Not Terroristic Threats

State v. Olson, Minn.Ct.App., 12/5/2016.  A state trooper came upon Mr. Olson parked in his car with its tires on the fog line.  Mr. Olson was shaking, covered in blood and had a golf ball sized lump on his head. One thing lead to another - including a brief chase - and the trooper ended up arresting Mr. Olson for drunk driving.  

Mr. Olson was not pleased with this turn of events:

TROOPER: Minnesota law requires you to take a test to determine if you are under the influence of alcohol.

OLSON: I wouldn’t trust you assholes for nothing. None of you. You are all assholes. I get beat up, I’m hurting, I stopped to make a phone call, and now I’m the dick. Just leave me alone. 

And so on and so forth.  Mr. Olson's parting shot to the trooper was to say, "I truly hope that you are one of the cops that gets their head blown off. ... I hope someone puts a slug  in your head, you loser."

A jury convicted Mr. Olson of terroristic threats.  Both at trial and on appeal he said that his hopes for the trooper's future were not threats and so the state hadn't proved the charge against him.  The Court of Appeals agrees.  The court said that Mr. Olson's statements were not direct threats because they did not communicate that he would act accordingly.  Nor were his statements indirect threats because he did not engage in either verbal or physical conduct that communicated that he would commit future crimes of violence:

We hold that Olson’s statements commenting on recent violent conduct towards police and expressing hope that something similar would happen to the trooper in the future do not constitute threats within the meaning of the terroristic-threats statute when those statements were unaccompanied by additional surrounding statements or conduct demonstrating that future serious crimes of violence could follow. Olson’s conviction for terroristic threats must be reversed because the evidence is legally insufficient.

Stalking Statute Prohibiting Repeated Telephone Calls Not Unconstitutional

State v. Hall, Minn.Ct.App., 12/5/2016.  Upset over his water bill, Mr. Hall placed five calls to a town employee in the middle of night.  Upon discovering that the town office wasn't open, and apparently being "old school", Mr. Hall left five voicemail messages, each more vociferous, obscene and hostile.

The state charged Mr. Hall with stalking for "repeatedly making telephone calls, knowing that the conduct would cause the victim to feel frightened, threatened, persecuted, oppressed, or intimidated and, in fact, causes this reaction. See Minn. Stat. § 609.749, subds. 1, 2(4) (2014)."  Mr. Hall said that his voicemails were protected speech under the First Amendment.  Here's how the court described the first call:

Hall’s first voicemail began with complaints about the mistreatment of neighborhood dogs. As the voicemail continues, his tone became increasingly hostile. He says that “this bullsh-t is going to come to an end.” He tells B.R. that she is “done” and that the locals are waiting for someone like him to “step up to the plate and swing the bat.” He adds, “Your bullsh-t is about to end.” He then described rumors about how B.R. was kicked out of her house for being immoral and how her family had killed a man. He says that “things are going to happen around here real quick, real quick, all done.” He ends the voicemail by insulting B.R.’s husband as a “fat mother f-cker.” The first voicemail is 3 minutes and 25 seconds long and includes more than 20 expletives. 

You get the picture.

The court concludes that the stalking statute includes not just making repeated calls but also the content of those calls.  The court then concludes that the statute is neither overbroad on its face nor as applied.  Because the statute includes a knowledge requirement by the actor, and a harm requirement to the victim, "it is highly unlikely that the statute would sweep a substantial number of constitutionally protected communications within its purview."   And, because Mr. Hall's rant included threats his voicemails were not protected speech, but, rather, were "fighting words."

Officers Had Reasonable Articulable Suspicion To Conduct Dog Sniff of Exterior of Car

State v. Lugo, Minn.S.Ct., 11/30/2016.  The cops were sitting on a "known drug house" outside of which Mr. Lugo was sitting in a car.  After a while Mr. Lugo got out of the car, went into this "known drug house", stayed about twelve minutes, then drove off.  Another set of cops stopped Mr. Lugo.  Mr. Lugo didn't stop right away; rather he pulled into a parking lot, drove across it, turned around, came partially back and finally stopped.  Just before stopping he leaned over in his seat as though he was trying to hide something. Mr. Lugo had recently been arrested for drug possession.  He lied about the identity of the owner of the car.  Last, but not least, he blurted out "Man just take me to jail, please."  

After all that it was time to send in the dog.  Dog sniffed around the exterior of the car and "alerted" to a couple of places.  The resulting search turned up drugs.  Mr. Lugo challenged this search, but limited to bringing in the dog.  On these undisputed facts, Justice Lillehaug concluded that the officer had a reasonable, articulable suspicion that Mr. Lugo was engaged in drug-related criminal activity sufficient to expand the scope of the initial stop to include the dog sniff.

The state had actually lost the suppression hearing in the trial court.  This set up a legal dispute over the proper standard of review when it's the state who is initiating a pretrial appeal.  You can read about that if you're so inclined; suffice it to say that the outcome makes it easier for the state to bring pretrial appeals.

Mysteriously, Justice Stras concurs only in the result.  There's no elucidation of where he parted company with the majority opinion.