Separate Appellate Standard of Review For Circumstantial Evidence Cases Survives Challenge

State v. Harris., Minn.S.Ct., 5/24/2017.  When Minnesota appellate courts review a conviction that is based on circumstantial evidence - in whole or in part - it is one of a handful of states that applies a different standard of review than for convictions based upon direct evidence. Under this separate standard of review the appellate court identifies "the circumstances proved and independently consider the reasonable inferences that can be drawn from those circumstances, when viewed as a whole. State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010."  Those inferences "as a whole must be consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.  State v. Fox, 868 N.W.2d 206, 223 (Minn. 2015).  

A jury convicted Mr. Harris of being in possession of a firearm even though he's not supposed to be doing that.  In an unpublished opinion the court of appeals reversed that conviction, saying that the state had failed to present sufficient evidence to prove it.  The state asked the Supreme Court to review the case and to abandon this separate standard of review.  In a 5-2 opinion, Justice G. Barry Anderson declines that invitation, much to the annoyance of Justices Lillehaug and McKeig who dissented:

When we review convictions, we apply one standard for convictions based on direct evidence, and we apply another standard for convictions based on circumstantial evidence. And we have avoided announcing a definitive standard for review of convictions based on both kinds of evidence.

This confusing dichotomy between how we expect juries to decide cases and how we review their decisions has existed for almost 90 years. Nine decades of confusion is long enough. Evidence is evidence. Minnesota should join the appellate courts of the United States, 41 other states, and the District of Columbia in adopting a unified standard of review.

Oh, and the facts?  That's what's got the state really, really pissed off:

The circumstances proved that implicate Harris include: (1) on the night of March 4, 2014, Harris was driving a car, J.A. was sitting in the front passenger seat, and K.E. was sitting in the rear seat; (2) there was an active warrant for J.A.’s arrest; (3) after securing backup assistance, the police officer assigned to execute the arrest warrant activated the lights and siren on his vehicle; (4) Harris continued driving between 30 and 35 miles per hour for about three blocks after the officer activated his lights and siren; (5) the officer saw movement in the car; (6) when the police officer searched the car, he noticed that the headlining had been pulled down near the sunroof, to the right and slightly behind the driver’s seat, creating a small void; (7) the officer saw an object, which he clearly recognized as the butt end of a silver handgun, wedged in this void between the headlining and roof of the car; (8) a mixture of male and female DNA from five or more people was recovered from the firearm; and (9) subsequent DNA testing concluded that none of the occupants of the vehicle could be excluded as contributors to the DNA mixture found on the firearm, but 75.7% of the general population could be.

The state said that if these facts weren't enough to uphold the jury's conviction then the Court was "eviscerating" the construct of joint-constructive possession.  Justice Anderson seems unfazed by this plea, basically throwing out some homilies in response:

We recognize that courts must be cautious in addressing the sufficiency of evidence in a joint constructive possession case. Constructive possession is a legal concept that permits an inference that the defendant possessed an item found in a place in which others had access when “there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it.” Florine, 226 N.W.2d at 611. In addition, two or more people can constructively possess an item jointly. Lee, 683 N.W.2d at 316 n.7. In a joint constructive possession case, the circumstances proved need not support a reasonable inference that the defendant actually possessed the item. Instead, the circumstances proved must support a reasonable inference that the defendant, singly or jointly, was at the time consciously exercising dominion and control over the item. The circumstances proved also would have to be inconsistent with a reasonable inference that the defendant, singly or jointly, was not consciously exercising dominion and control over the item at the time in question.

 Even more infuriating to the state, Mr. Harris actually conceded in the court of appeals that "reasonable inferences to be drawn from the circumstances proved [were] that [he] knowingly possessed the gun before it was hidden in the liner."  Again, the Justice sweeps this aside:

Because we conclude that, when viewed as a whole, there are rational hypotheses other than guilt consistent with the circumstances proved, we need not address the impact, if any, of Harris’s attempt to reframe his earlier concession.

Juvenile's Three Consecutive Life With Possibility of Release Sentences Do Not violate Miller/Montgomery

State v. Ali, Minn.S.Ct., 5/17/2017.  Mr. Ali shot and killed three men during a robbery of a local market when he was sixteen years old.  A jury convicted him of these murders and he now is serving three consecutive life sentences, so he must serve ninety years in prison before he is even eligible for parole release.  Now, he could live that long, but it's statistically not likely.  He argues here that the three consecutive life sentences, even with the possibility of release, are the "functional equivalent" of life imprisonment without possibility of release. The sentences thus violate the Miller/Montgomery Eighth Amendment prohibition of sentencing juveniles to life without possibility of release except "for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility."

Justice Hudson, writing for all but Justice Chutich who dissented, took the easy way out and punted:

Because Miller and Montgomery involved the imposition of a single sentence of life imprisonment without the possibility of parole and the United States Supreme Court has not squarely addressed the issue of whether consecutive sentences should be viewed separately when conducting a proportionality analysis under the Eighth Amendment to the United States Constitution, we decline to extend the Miller/Montgomery rule to include Mahdi and other similarly situated juvenile offenders.

Back in the nineteenth century, 1892 to be exact, SCOTUS threw out a bit of dictum that essentially said that Eighth Amendment analysis focuses on the sentence imposed for each specific crime, and not on the cumulative sentence. , O'Neil v. Vermont, 144 U.S. 323 (1892).  This was good enough reason to ignore this century's "juveniles are different" Eighth Amendment jurisprudence, something this court is already pretty good at doing.  See Jackson v. State for the sordid history.

No Retroactivity For Birchfield/Thompson DWI Warrant Requirements

Brooks v. State, Minn.Ct.App., 5/15/2017.  Mr. Brooks has been litigating his three DWI convictions for nearly a decade.  The focus of this litigation has been his claim that the police needed a search warrant in order to collect either blood or urine samples.  Read about some of that here.  This litigation has led him to both Minnesota appellate courts multiple times, and to the U.S. Supreme Court at least once.  Although he has won some skirmishes along the way, his convictions remain on the books.

While all this running around has been going on, SCOTUS decided Missouri v. McNeeley, 133 S.Ct. 1552 (2013) (In drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.; and Birchfield v. North Dakota, 136 S.Ct., 2160 (2016) (The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests.). The Minnesota Supreme Court then decided State v. Thompson, 886 N.W.2d 224 (Minn). 2016), which begrudgingly accepted Birchfield.  

Mr. Brooks then fired what surely must be his last bullet, this post conviction petition.  He said that Birchfield and Thompson should be applied retroactively to his convictions.  Mr. Brooks said that these decisions did not announce "new rules of law" and thus under Teague v. Lane, 489 U.S. 288 (1989) must be applied retroactively. Well, who knows:

It is admittedly often difficult to determine when a case announces a new rule, and we do not attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes. In general, however, a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final. 

The court of appeals takes the risk-free pass and says that the aforementioned cases did, indeed, announce "new rules of law" and thus do not get retroactive application.  After all, the court of appeal shad already said that McNeely did not apply retroactively. O'Connell v. State, 858 N.W.2d 161 (Minn.Ct.App., 2015), review granted (Minn. 3/25/2015) and order granting review vacated, (Minn. 10/20/2015).  Mr. Brooks did not argue that either of the two Teague exceptions applied and so that was that.

Mr. Brooks threw in claims of ineffective trial and appellate counsel, but the court makes short shrift of both those claims.

Evidence Sufficient to Support Felony Murder; No Plain Error in Instructions

State v. Webster, Minn.S.Ct., 5/10/2017.  A jury convicted Mr. Webster of first degree felony murder for the killing of Eulalio Gonzalez-Sanchez. Here's how Mr. Webster said it happened:

On the morning of September 21, 2014, he and Blackwell had been smoking marijuana and were “money hungry.” They were “riding around [northeast Minneapolis] looking for a victim to rob” in Blackwell’s car when they spotted Gonzalez-Sanchez. Webster got out of the car with Blackwell’s gun in his pocket and approached Gonzalez-Sanchez with the intention of robbing him. He said he had brought the gun along as “back up” because GonzalezSanchez “was big.” Gonzalez-Sanchez saw Webster approaching and “act[ed] like . . . he was going to attack” him. When Webster pulled out the gun, Gonzalez-Sanchez surrendered, complying with Webster’s order to lie on the ground. Webster took GonzalezSanchez’s wallet from his back pocket and looked through it, but found nothing worth taking. He claimed that he did not see or steal Gonzalez-Sanchez’s cell phone.

Webster left the wallet on the ground and began walking away, scared and shaking. Gonzalez-Sanchez remained on the ground, and said something to Webster in Spanish. Webster said that this “really [made him] nervous.” Webster testified that he had walked about 5 feet away when suddenly, “something . . . forced [him] to stop” and “a demon jumped into [him]”—in other words, “something like a spirit came through [his] body.” Webster then turned and shot Gonzalez-Sanchez three times. He described the incident as “a robbery that went wrong.”

Mr. Webster said that the state had presented insufficient evidence to prove that the killing of Mr. Gonzalez-Sanchez occurred while he was attempting to commit an aggravated robbery.  Mr. Webster said that it had been the "spirit" that had come through him that caused the killing so he hadn't killed him "while" the robbery was going down.  Justice McKeig doesn't think too much of this theory. This is because, in part, after the killing Mr. Webster's homie, Mr. Blackwell, went back to check the body one last time for anything of value that could be taken, so technically, the robbery was still ongoing.

Mr. Webster also complained about the standard jury instructions for felony murder.  Because he did not object to the instructions the court reviews this under "plain error" analysis.  The court can't find that any error was "plain":  

Here, the district court instructed the jurors that the fourth element of the felony murder offense required that “at the time of causing the death of [Gonzalez-Sanchez], the defendant was engaged in the act of committing or attempting to commit the crime of aggravated robbery.” This instruction is consistent with the standard jury instruction set forth in the Criminal Jury Instruction Guide. 10 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 11.09 (6th ed. 2015). Moreover, the instruction does not contravene existing case law. We have never held that a district court is required to include language requiring a causal relationship between the felony and the killing in the jury instructions on first-degree felony murder. Thus, like the error alleged in [State v. ]Milton, 821 N.W.2d [789 (Minn. 2012) at 807, we conclude that the alleged error in this case was not plain.

Counsel's Misinformation About Consequences of Plea Is Not a Manifest Injustice

State v. Brown, Minn.Ct.App., 5/8/2017.  The state charged Mr. Brown with being an ineligible person in possession of a firearm. His ineligibility stemmed from a Florida conviction for an aggravated robbery and a couple other offenses.  Mr. Brown did some time in Florida and then went on probation, which Minnesota was supervising.  By all accounts, his Florida supervision was set to expire some four months after he agreed to plead guilty to the gun charge.

Mr. Brown's probation officers in both Florida and Minnesota confirmed this probation expiration date to his attorney, who in turn informed Mr. Brown.  Mr. Brown pled guilty to the gun charge, got probation and then got shipped off to Florida.  His Florida lawyer then told Mr. Brown that he was at risk of a life sentence as a result of his plea to the gun charge.

Mr. Brown moved to withdraw his plea.  He said that his plea had not been intelligently entered owing to not being informed about the potential life sentence.  (In fact, it's no potential; he's serving a life sentence.)  The post conviction court agreed, concluding that the life sentence was a "direct consequence" of the guilty plea to the gun case. Because Mr. Brown had not been informed of the possibility of this life sentence his plea was not intelligently made.

The court of appeals takes the post conviction court to task for its conclusion that the life sentence was a "direct consequence."  Such direct consequences are "definite, immediate[,] and automatic" and are "punitive and a part of a defendant's sentence.  Kaiser v. State, 641 N.W.2d 900, 907 (Minn. 2002).  

Well, okay.  But isn't it a "manifest injustice" to permit a plea to stand that is based upon counsel's affirmative misinformation about a "collateral consequence"?  Apparently not:

The caselaw does not compel us to conclude that misinformation about a collateral consequence renders a plea unintelligent and manifestly unjust. And such a categorical rule would require plea withdrawals for misadvice even about collateral consequences of little significance with possibly no effect on the defendant’s decision to plead guilty.

"Carrying" a Pistol in a Public Place Includes an Unloaded Pistol That Is In a Secure Case

State v. Larson, Minn.Ct.App., 4/24/2017.  Mr. Larson, who has a valid permit to carry a pistol, went down to the First National Bank Building intending to partake of the shooting range that's in the basement of that building.  He rode downtown to the bank building, got out of the car, walked to the building on a public sidewalk, and went inside.  All the while he was holding a closed gun case which contained an unloaded pistol.  Because it turned out that Mr. Larson was under the influence of alcohol the city prosecutor charged him with carrying a pistol while under the influence of alcohol based on his act of holding the pistol in a case on a public sidewalk.

He moved to dismiss the charge.  He said that the statute did not extend to possession of an unloaded pistol securely enclosed in a gun case.  The trial court disagreed, and the court of appeals affirms.

When the legislature enacted the statute to permit persons to carry pistols in public it excluded a person's ability to do so if that person were under the influence of alcohol.  The statute does not, however, define "carry" so the court hauls out the dictionaries to give it a go:

Because the term “carry” is not a defined statutory term, we first address whether there is an ordinary usage of the word “carry,” which provides the term’s plain meaning. Occhino, 640 N.W.2d at 359. And ordinary usage may be determined with the aid of dictionary definitions. State v. Haywood, 886 N.W.2d 485, 490 (Minn. 2016). Here, “carry” has been defined as “[t]o convey or transport.” Black’s Law Dictionary 257 (10th ed. 2014). It also has the meaning of “[t]o keep or have on one’s person.” The American Heritage Dictionary of the English Language 294 (3d ed. 1992). Using these definitions, we conclude that, by its plain meaning, “carry” in Minnesota Statutes section 624.7142, subdivision 1, subsection 4, prohibits transporting a pistol on one’s person while under the influence of alcohol in a public place. Because the statute prohibits carrying “about” the person’s clothes or person, this includes situations in which the pistol is unloaded and in a case. See Minn. Stat. § 624.7142, subd. 1(4). 

The court also points to other statutes where the legislature was more precise in its language.  For instance, there is a statute that prohibits carrying a BB gun, rifle, or shotgun in a public place but expressly provides that "carry" doesn't including toting those weapons around unloaded in a fully enclosed case.  Minn.Stat. 624.7181, subds. 1(b)(2),2.  

Any Criminal Vehicular Operation Conviction Can Be Used to Enhance a DWI to a Felony Regardless of Statutory Language

State v. Boecker, Minn.S.Ct., 4/26/2017.  Sometimes the "plain language" of a statute just doesn't get you where you want to go:

Worn out phrases and longing gazes

Won't get you where you want to go, no.

Here's how Justice Chutich describes what's before them in this appeal from the court of appeals:

Appellant Ralph Joseph Boecker pleaded guilty to one count of first-degree driving while impaired (DWI) after the district court found that his 1998 conviction for criminal vehicular operation enhanced his 2015 DWI charge. See Minn. Stat. § 169A.24, subd. 1(3) (2016); Minn. Stat. § 609.21, subd. 2a (1996). Boecker argues that he is entitled to withdraw this plea because his 1998 conviction is not included in the list of predicate felonies in section 169A.24, which enhance a DWI charge to first-degree DWI. The sole issue here is whether a criminal vehicular operation conviction from 1998, a year not specifically listed in the current version of the first-degree DWI statute, can be used to enhance a DWI charge to a first-degree offense. We hold that it can, and we affirm the decision of the court of appeals. 

This is just too, too much for the originalist/literalist on the court, Justice Stras to bear:

The question in this case is whether a 1998 criminal-vehicular-operation conviction is a predicate offense that can transform appellant Ralph Boecker’s driving-while-impaired (“DWI”) charge into a first-degree offense. Resolving this question, like the one presented in Mims, turns on the plain and unambiguous language of a criminal statute—here, Minn. Stat. § 169A.24, subd. 1(3) (2016)—not on what behavior we think the Legislature may have believed it was criminalizing. See Mims, 2 N.W. at 492-93. The court’s answer to the question would allow an unlisted offense to enhance Boecker’s current crime, converting it from fourth-degree DWI, a misdemeanor with a maximum sentence of 90 days in jail, into first-degree DWI, a felony offense carrying a minimum sentence of 3 years in prison. Compare Minn. Stat. § 169A.276, subd. 1(a) (2016), with Minn. Stat. § 169A.27, subd. 2 (2016); Minn. Stat. § 609.03 (2016). My answer is different. I would conclude that the plain and unambiguous language of section 169A.24, subdivision 1(3), establishes that Boecker’s 1998 criminal-vehicular-operation conviction, which is nowhere to be found in the first-degree DWI statute, does not enhance Boecker’s current DWI offense.

Justice Hudson joined Justice Stras's dissent.

Court Rejects Challenges To Grand Jury Procedures, Evidentiary Rulings & Jury Instructions in Affirming Murder I Conviction

State v. Guzman, Minn.S.Ct., 4/12/2017.  A jury convicted Mr. Guzman of first degree premeditated murder.  The trial court sentenced him to life with possibility of release.  

The state's initial Complaint charged Mr. Guzman with second degree intentional murder.  At his first appearance the trial judge asked the prosecutor to notify the court and defense counsel if there was going to be a presentation to the grand jury.  The prosecutor apparently didn't say anything in response, but seventeen days later the state convened a grand jury which eventually returned the murder 1 indictment.  Mr. Guzman said that the indictment was untimely, citing to Rule 8.02, subd. 2:

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 defendant’s appearance in the court under this rule, and an indictment or report of no indictment must be returned within a reasonable time.

Justice G. Barry Anderson pointed to the court's opinion last year, State v. Vang, which rejected this very argument.

Mr. Guzman also wanted the entire grand jury transcript, not just the testimony of trial witnesses.  The court talked about this just the other week, State v. Loving, and laid out what the defense has to show in order to get the non-testimonial portion of grand jury proceedings.  The defense must show good cause to acquire the non-testimonial portion; the trial court found, and Justice Anderson agreed, that this burden had not been met.

Mr. Guzman defended in part by saying that a Mr. Hector was a third party perpetrator.  Mr. Guzman wanted to introduce "prior bad acts" of Mr. Hector, some of which the court allowed but most of which it excluded on evidentiary grounds:

Here, the district court allowed appellant to present evidence that at the time of Rufino’s death, Hector had consumed alcohol and possessed a firearm.11 The court, however, excluded the following reverse-Spreigl evidence as irrelevant: testimony that during the spring 2014 robbery Hector consumed alcohol and possessed a firearm and testimony about an alleged dispute between Hector and his neighbor that involved a gun. The court also excluded evidence that Hector and Rufino were gang members, concluding that the evidence was “innately prejudicial.” Finally, the district court excluded testimony regarding an alleged confrontation between Hector and J.R., finding that if it was offered for the truth of the matter asserted, it was hearsay, and if it was offered for impeachment, Hector did not have an opportunity to admit or deny it. 

The trial court allowed the state to introduce recordings of jail calls between Mr. Guzman and his girlfriend, some of which occurred while he was in jail on something else.  While the court didn't like it that the state told the jury how it was that it had these recordings it said that any error was harmless.

Once again, the whole business of "expansive liability" language in the jury instruction on accomplice liability came up:

The law further provides that a defendant who intentionally aids and abets another person in the commission of a crime is not only guilty of the intended crime but also any other crime which was a reasonably foreseeable and probable consequence of trying to commit the intended crime.

Appellant objected to the italicized language, which for purposes of this opinion we will call “the expansive-liability language.” According to appellant, the expansive-liability language is appropriate only when there is evidence that the defendant intentionally aided and abetted an accomplice in the commission of a crime, like robbery, and the accomplice commits another crime that was reasonably foreseeable to the defendant, like murder. 

The court says that if there were any error it was harmless.

Neither Newly Discovered Evidence Nor Ineffective Assistance of Counsel Claims Enough For New Trial

Mosley v. State, Minn.S.Ct., 4/26/2017.  A jury convicted Mr. Mosley of first degree murder, which the supreme court affirmed a couple of years back.  Mr. Mosley alleged in this post conviction petition that he was entitled to a new trial based upon newly discovered evidence of five signed affidavits from alibi witnesses; he also said that both trial and appellate counsel had provided ineffective assistance of counsel.  The affidavits generally said that Mr. Mosley was in St. Louis at the time of the homicide. Justice McKeig affirms the post conviction court's summary denial of this claim, saying that it appeared that defense counsel knew of two of the claims and the other three were cumulative of the alibi testimony that had been presented at trial.  On the performance of counsel, it's pretty much the same; even had counsel found more alibi witnesses it wasn't likely to have changed the outcome of the trial.  That being the case, appellate counsel did nothing wrong in not accusing trial counsel of being ineffective.

Wheels on the bus just go round and round.

Despite Statutory Language To The Contrary a Motel Room is a "Building" Unto Itself Under the Burglary Statute

State v. Lopez, Minn.Ct.App., 4/24/2017.  Mr. Lopez was staying in a motel out in Wilmar.  He entered Z.D.'s motel room, which was unlocked, and stole Z.D.'s cell phone and wallet while Z.D. was in the shower.  The state charged Mr. Lopez with theft and with first degree burglary.  The trial court convicted Mr. Lopez of both counts.

On appeal Mr. Lopez said, as he had during trial, that he had not entered a "building" without consent because he was staying at the motel - a "building", surely -, and that Z.D.'s separate motel room was not a "building. The court of appeals said no to both of these claims.

Everyone agreed that Mr. Lopez had consent to enter the motel, itself; after all, he'd rented a room (different from Z.D.'s room).  So, the conviction for the burglary turns on whether Z.D.'s room is a "building," or more accurately, a "sub-building". Mr. Lopez said that it was not, pointing in particular to the arson statute that says that “If a building consists of two or more units separately secured or occupied, each unit shall be deemed a separate building.”  Minn. Stat. § 609.556, subds. 1, 3 (2014). 

Looking directly at the burglary statute - or to what's not in the burglary statute - he also pointed out that until 1983 the definition of "building" in the burglary statute expressly included "portions of such structure as are separately occupied." Like a motel room. Removing that language, he argued, indicated the legislature's desire not to treat individual, enclosed spaces within a larger building - alas, a motel room - as separate "buildings."  Rather than simply pointing to what's not in the burglary statute the court of appeals says that the post 1983 language is ambiguous.  Further, although it has skirted around the question of whether under the post 1983 burglary statute a "building" encompasses sub-units like Z.D.'s motel room it has not answered the question.  Time to haul out the dictionaries and Phoenix-like raise up the old statute.

Where the court finds that a "structure" includes anything intentionally constructed from component parts.  A motel room fits that definition so the court is half way home.  To complete the journey the court looks to the statutory definition of a "building." The statute says that a "building" is a  "structure" that is "suitable for affording shelter for human beings."  Well, a motel room is by its very existence "suitable for affording shelter for human beings." That's the whole point:

We are mindful of the fact that the legislature modified the definition of “building” for the crime of burglary in 1983 and, in doing so, did not expressly provide that a separate unit “shall be deemed a separate building,” as it did for arson. Minn. Stat. § 609.556, subd. 3. We are also mindful that our holding means that both a motel and a rented room within the motel qualify as a “building” for the purposes of the burglary statute. But inartful language is not necessarily ambiguous language. And we conclude that the statute as written unambiguously defines a motel room as a “building.” 

The court thus reinserts the very language that the legislature struck out thirty-four years ago.  Sigh.