Presumed Error In Instructions - Omitting an Element of the Offense - Is Deemed Harmless

This is the one thousandth post that I have made to this blog.  I don't believe that all of them have been substantive discourses, but most of them have been.  For the ten or so of you who apparently read this please accept my appreciation.  And now, on with the show.

State v. Schoenrock, Minn.S.Ct., 7/26/2017.  This is another opinion in a series of periodic opinions that assumes that there was an error in the trial court but ignores it.  The presumed error in this installment is an instruction error whereby the trial court omitted an element of the charged offense.  Justice Hudson says it was close enough for government work.

Ms. Schoenrock was a personal care attendant (PCA).  She billed the state for hours that she did not work.  When the state caught up with her they charged her with theft by false representation under Minn.Stat. 609.52, subd. 2(a)(3)(iiii).  This statute defines theft by false representation as a crime committed when a person:

obtains for the actor or another the possession, custody, or title to property of or performance of services by a third person by intentionally deceiving the third person with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made. 

Emphasis added.  The trial court gave the "definition" instruction for this offense, CRIMJIG 16.05, which says:

Under Minnesota law, whoever obtains for [herself] the possession, custody, or title to property of another person by intentionally deceiving the other with a false representation that is known to [her] to be false, is made with intent to defraud, and does defraud the person to whom it is made, is guilty of a crime. 

But, when the trial court got to the "elements" instruction, CRIMJIG 16.06, it did not say anything about "intent to defraud," apparently because the CRIMJIG doesn't have those words.  Ms. Schoenrock asked the trial judge to correct this oversight but the judge declined to do so.

Justice Hudson says, somewhat plaintively, that "intent to defraud" is an element of the offense, but there's no teeth in it.  Instead, there's an audible sigh and then she says, if this is an error it is a harmless one.

DSRA Increased Weight Threshold Does Not Entitle Defendant To Dismissal of Charges

State v. Otto, Minn.S.Ct., 7/26/2017.  This is a companion case to State v. Kirby, decided the same day with basically the same alignment of justices.  Just as Mr. Kirby got the benefit of the reduced Guidelines sentencing range, so, too, does Mr. Otto.

The added wrinkle for Mr. Otto is that the DSRA increased the weight threshold for his crime of conviction.  Mr. Otto possessed 29 grams of methamphetamine, which at the time of his trial satisfied the weight threshold of 25 grams.  After enactment of the DSRA, however, those 29 grams no longer satisfied the weight threshold.  Mr. Otto said that his conviction should be vacated and the charges dismissed.  Justice Lillehaug, for all seven members of the court, reject this assertion, pointing to the DSRA language that says that the new legislation did not apply to crimes committed prior to its effective date.

Offenders Whose Convictions Were Not Final on Effective Date of Drug Sentencing Reform Act Get Benefit of Reduced Guidelines Sentencing Ranges

State v. Kirby, Minn.S.Ct., 7/26/2017.  The trial court imposed a presumptive Guidelines sentence of 161 months for Mr. Kirby's conviction of first degree possession of methamphetamine.  The legislature then enacted, and the governor signed, the Drug Sentencing Reform Act (DSRA).  The pertinent part of that Act for Mr. Kirby is that it reduced the presumptive Guidelines sentencing range for his offense.  Mr. Kirby said that he should be re-sentenced under this reduced Guidelines range. In a 4-3 Opinion, Justice Lillehaug agreed.  Justice G. Barry Anderson dissented, joined by Chief Justice Gildea and Justice Stras.

The DSRA said that it applied "to crimes committed on or after [it's effective date]."  Significantly, it did not say something like, "Crimes committed prior to the effective date of this act are not affected by its provisions."  Justice Lillehaug said that a statement to that effect would abrogate what's called "the amelioration doctrine," which says that an offender whose conviction is not yet final gets the benefit of a statute that reduces punishment for the offender's crime.  

Prior cases establish that the amelioration doctrine applies when:

(1) there is no statement by the Legislature that clearly establishes the Legislature’s intent to abrogate the amelioration doctrine; (2) the amendment mitigates punishment; and (3) final judgment has not been entered as of the date the amendment takes effect. 

The state took aim at the first requirement; it threw up a multitude of reasons to support its assertion that the DSRA had abrogated the doctrine.  Justice Lillehaug rejects them all.  The most cogent reason, which is what the dissenters latched onto, are two provisions in the Sentencing Guidelines.  Both of them have been there forever.  The first one says that "The presumptive sentence . . . is determined by the Sentencing Guidelines in effect on the date of the conviction offense . . . . Minn. Sent. Guidelines 2."  Justice Lillehaug concludes, seemingly out of thin air, that this is only a reference to ex post facto, which prohibits a judge from sentencing a defendant under a law that increased punishment from what the punishment was at the time of the offense.  The other Guidelines provision that the state and dissenters pointed to says that policy modifications to the Guidelines apply to offenders whose date of offense is on or after the specified modification date.  Justice Lillehaug decides that policy changes don't include the sentencing Grid.

Evidence Insufficient Because of Failure to Include One of Three Predicate Prior Convictions In List of Qualifying DWI Enhancement Offenses

State v. Smith, Minn.S.Ct., 7/19/2017.  Here's how this rare plurality opinion begins:

The legal question presented in this case is whether appellant Ryan Leroy Smith’s 2005 gross-misdemeanor conviction of criminal vehicular operation is a “prior impaired driving conviction” under Minn. Stat. § 169A.03, subd. 20 (2008). The question is relevant here because Smith’s current offense, driving while impaired, was enhanced to a first degree crime based on the existence of three prior impaired-driving convictions, including Smith’s 2005 criminal-vehicular-operation conviction. The court of appeals held that Smith’s current offense was properly charged and adjudicated as a first-degree crime because his 2005 conviction was a qualifying offense. State v. Smith, No. A15-0570, 2016 WL 1081154, at *1-2 (Minn. App. Mar. 21, 2016) (analyzing Minn. Stat. § 169A.03, subd. 20). We conclude that, because Smith’s 2005 conviction is not included in the list of qualifying offenses in Minn. Stat. § 169A.03, subd. 20, there was insufficient evidence to convict Smith of first-degree driving while impaired. Accordingly, we reverse.

The result is that the Court throws out on insufficiency grounds Mr. Smith's first degree DWI conviction.  One of Mr. Smith's prior convictions used for enhancement was a 2005 criminal vehicular operation offense. When the legislature subsequently reorganized the CVO statutes it moved the language under which Mr. Smith had been convictetd to a different subsection of the statute; it then stirred the pot even more when it amended the DWI enhancement statute.  That amendment listed each offense that could be used for enhancement by statutory citation, including year of enactment.  Conspicuously absent from that list was the 2005 citation (and year of enactment) of Mr. Smith's CVO offense.

Justice Stras, with Justices G. Barry Anderson and Hudson joining this plurality opinion says, "Show me the statute!"  It's not there and we don't write statutes.  Chief Justice Gildea, not signing on to Justice Stras's literalist interpretation of all things statutory, concurs only in the judgment; she finds the statutes ambiguous and she engages in legislative intent analysis.  She thought that both Mr. Smith and the State had equally compelling arguments.  That left her with "rule of lenity" under which the victory goes to Mr. Smith.

The other three justices dissent, basically concluding that what the legislature did was close enough for government work.  They thought that because the legislature had kept the very same statutory language under which Mr. Smith had been convicted back in 2005 but just in a different subsection, the legislature clearly intended to include it an a qualifying prior conviction.  

Landlord/Tenant Lease Did Not Authorize Landlord to Consent to Police Entry Into A Rented But Unoccupied Apartment

State v. Dotson, Minn.Ct.App., 7/17/2017.  Mr. Dotson stumbled into a police drug investigation.  He'd come over to this apartment most likely expecting either to score or use some drugs only to find the cops all over the place.  When another one of his buddies showed up, Mr. Dotson tried to warn him off, shouting, "They're doing a search warrant in here."  The officers then arrested Mr. Dotson for obstructing legal process; in the search incident to that arrest they found drugs.

Mr. Dotson moved to suppress the drugs; he said that the officers' entry into the apartment had been unlawful.  The way that went down is that the landlord was investigating a water leak thought to be emanating from the very same apartment where later the police arrested Mr. Lawson.  The landlord knocked on the apartment door; for some reason the occupants allowed him to enter even though there was a full blown drug party going on.  The landlord politely inquired about the water leak, found it, and then said he'd be back later to fix it.  The landlord left and immediately called the police. When the police arrived, the drug party had moved on; the landlord told the cops that they could come inside the apartment.  The landlord said that he could give the cops permission under a provision of the lease that allowed him to enter the premises "for purposes of maintenance."  The trial judge denied the motion, relying on this lease provision as well as a statute that gives landlords the authority to enter the apartment under certain specified circumstances.  Here's what the lease provision says:

Management or its authorized agents may enter the Apartment at any reasonable time to inspect, improve, maintain or repair the Apartment, or do other necessary work, or to show the Apartment to potential new residents or buyers.

The court of appeals concludes that this lease provision does not give the landlord either actual or apparent authority to consent to a search of the premises, relying upon State v. Licari, 659 N.W.2d 243 (Minn. 2003).  This is because landlords have rights of access and not rights of use.  As to the statute, that's of no use either:

Generally, a landlord may enter a rented unit for “a reasonable business purpose” after making “a good faith effort to give the residential tenant reasonable notice.” Minn. Stat. § 504B.211, subd. 2 (2016).5 “A residential tenant may not waive and the landlord may not require the residential tenant to waive the residential tenant’s right to prior notice of entry . . . as a condition of entering into or maintaining the lease.” Id. (emphasis added). A landlord may dispose of the notice requirement only if immediate entry is necessary to: (1) “prevent injury to persons or property because of” maintenance, security, or police issues; (2) “determine a residential tenant’s safety”; or (3) “comply with local ordinances regarding unlawful activity” within the premises.

The court of appeals also rejects authority for the warrantless entry on both exigent circumstances and inevitable discovery theories.  

Rules of Evidence Apply to Restitution Hearing

State v. Willis, Minn.S.Ct., 7/12/2017.  This is a restitution case, which asks the question, "Do the rules of evidence apply to restitution hearings."  Both the trial court and the court of appeals said, "No, they don't."  Chief Justice Gildea, Justice McKeig dissenting, said, "Yes, they do."

The answer turns on the interpretation of Rule 1101(b)(3), which excludes the rules of evidence from these hearings:

Proceedings for extradition or rendition; probable cause hearings; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise.

Now, not that long ago the supreme court said that the rules of evidence apply to Blakely bench trials.  State v. Sanchez-Sanchez.  Although restitution is part of a "sentencing", State v. Borg, 834 N.W.2d 194 (Minn. 2013), the hearing to which a defendant is entitled when she challenges the amount of restitution is not.   

Giving Wrong Self Defense Instruction Requires a New Trial

State v. Pollard, Minn.Ct.App., 7/10/2017.  A jury convicted Ms. Pollard of second degree felony murder for the stabbing death of her boyfriend. Ms. Pollard did not admit to killing her boyfriend intentionally; rather, she said that she swung the knife at her boyfriend as the two of them were fighting.  She claimed self defense, and  defense of dwelling.  On appeal she said that because the trial judge gave the wrong self defense instruction she is entitled to a new trial.  She had requested the general self defense instruction from CRIMJIG 7.05; the state wanted the justifiable taking of life instruction from CRIMJIG 7.06.  The court of appeals agrees with Ms. Pollard and sends the case back for a new trial.

There are two self defense statutes in Minnesota (and two corresponding JIGS).  Minn.Stat. 609.06, subd. 1 - general self defense - permits the use of reasonable force against another in certain circumstances. Intentionally taking the life of another person - justifiable taking of life - however, is covered under Minn.Stat. 609.065.  Each of these statutes has different requirements:

The elements of self-defense under section 609.06, subdivision 1(3), are

(1) the absence of aggression or provocation on the part of the defendant; (2) the defendant’s actual and honest belief that he or she was in imminent danger of . . . bodily harm; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger.

A person may intentionally take the life of another " when it is “necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor’s place of abode.” Minn.Stat. 609.065.  The requirements are:

(1) The killing must have been done in the belief that it was necessary to avert death or grievous bodily harm. (2) The judgment of the defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances. (3) The defendant’s election to kill must have been such as a reasonable man would have made in light of the danger to be apprehended.

There's a whole slew of cases in which the Minnesota Supreme Court has said that it's error to give the justifiable taking of life instruction when the defendant asserts self defense but claims that the death was not the intended result:

See State v. Carridine, 812 N.W.2d 130, 143-44 (Minn. 2012) (concluding that the justifiable taking-of-life instruction was given in error where the defendant’s defense was that the death was unintended); Hare, 575 N.W.2d at 832-33 (concluding that the “self-defense— causing death” instruction was given in error where the defendant claimed the death was accidental); State v. Robinson, 536 N.W.2d 1, 2-3 (Minn. 1995) (concluding that the instruction was given in error where the defendant claimed the death was accidental); State v. Marquardt, 496 N.W.2d 806, 806 (Minn. 1993) (noting that the general self-defense instruction should be given, or the justifiable-taking-of-life instruction modified, if the defendant claims that he did not intend to kill the victim); see also State v. Dolbeare, 511 N.W.2d 443, 446 (Minn. 1994) (“[E]ven where death has resulted from a defendant’s  action, the judge should use [the general instruction] if the defendant’s theory does not include a concession that there was an intent to kill.”); State v. Sanders, 376 N.W.2d 196, 201 (Minn. 1985) (noting that an instruction that “‘the killing must have been done in the belief that it was necessary to avert death or great bodily harm’ is language that would better fit a case in which the defendant claimed he intentionally killed in self-defense”); State v. Edwards, 343 N.W.2d 269, 277 (Minn. 1984) (providing that the general self defense instruction was properly provided to the jury, rather than the justifiable-taking-of life instruction, as “[t]he latter is useful only when the death was intended”); State v. Fidel, 451 N.W.2d 350, 355 (Minn. App. 1990) (noting that the general self-defense instruction “is the appropriate self-defense standard for second-degree felony murder”), review denied (Minn. Apr. 13, 1990).

The state said that giving the justifiable taking of life instruction, now CRIMJIG 7.06, was just all a clerical error.  Here's why:  A few years back the JIGS Committee switched the numbers on the self defense and justifiable taking of life instructions.  Justifiable taking of life used to be CRIMJIG 7.05; and the general self defense instruction was CRIMJIG 7.06. Now, it's the reverse of that: CRIMJIG 7.05 is now the general self defense instruction, and CRIMJIG 7.06 is now the justifiable taking of life instruction.  

The state went on to point out that there's this case, issued before the numbering switch, that said that the court should give CRIMJIG 7.06 where the defendant claimed that the resulting death was unintentional. State v. Hare, 575 N.W.2d 828 (Minn. 1998). The state said never mind that the CRIMJIG 7.06 from Hare was then the general self defense instruction and is now the justifiable taking of life instruction.  The court's response to this argument is to say that the trial court had to do more than rotely read the cases; rather, it had to use "analytic precision" in drafting jury instructions.

Besides, having gone to the trouble of looking up all these cases and then reciting them, the court of appeals was hardly going to give the trial court and state a pass.  The court concludes that the trial court committed error in giving the justifiable taking of life instruction. The court also said that this error was not harmless:

We cannot say whether the jury would or would not have believed that appellant’s acts were justified if they were properly instructed under Minn. Stat. § 609.06, subd. 1(3), that appellant only had to have an actual and honest belief that she was in imminent danger of bodily harm, rather than death or great bodily harm.

Ms. Pollard gets a new trial.

Admission Into Evidence of Report of Non-Testifying Radiologist Does Not Violate Confrontation Rights

State v. Andersen, Minn.Ct.App., 7/3/2017.  A jury convicted Mr. Andersen of assaulting his girlfriend, A.A.  He complained on appeal that the trial court had improperly admitted prior abuse testimony, and had improperly admitted the report of the radiologist, who did not testify, that confirmed the testimony of a physician's assistant that A.A. had a broken nose.  Here's how the court of appeals summed all this up:

A jury in an assault trial heard testimony that appellant Travis Andersen punched his girlfriend A.A. in the face and that he had previously assaulted her. A.A.’s treating physician’s assistant testified that she examined A.A.’s x-rays and concluded that A.A. suffered a broken nose, and the prosecutor introduced a radiologist’s report confirming that A.A.’s nose was broken. The jury found Andersen guilty. Andersen argues that the district court abused its discretion by allowing A.A. to testify about Andersen’s prior abuse and violated his constitutional right to confront witnesses by admitting the radiologist’s report. We affirm because the prior-abuse testimony was admissible relationship evidence and because the radiologist’s report was not testimonial in nature. 

A.A. testified that Mr. Andersen had once hit her in the face during an argument.  Mr. Andersen said that the trial court improperly admitted this prior abuse evidence because it was only relevant to establish whether A.A. alleges assaultive behavior and not that her allegations in this case were true.  This argument is a bit too nuanced for the court of appeals:

The testimony was not chiefly that A.A. alleged prior abusive behavior, but that Andersen had actually engaged in prior abusive behavior. Her testimony informed the jury of the nature of their relationship, the times that she felt afraid of Andersen, and the times that Andersen attempted to manipulate, control, and restrain her. This testimony has obvious probative value. 

Turning to the report of the non-testifying radiologist, Mr. Andersen relied on a slew of cases where scientific reports made during the course of a criminal investigation were held to be inadmissible under the Confrontation clause.  It's worth a lengthy extract to summarize these cases:

In Caulfield, the Minnesota Supreme Court determined that a Bureau of Criminal Apprehension laboratory report identifying cocaine was testimonial evidence that was admitted in violation of the appellant’s confrontation right. 722 N.W.2d at 306–07, 310. The court recognized that the “critical determinative factor” in determining testimonial nature is whether a statement was prepared for litigation. Id. at 309. It concluded that the report was prepared for litigation, bearing “characteristics of each of the three generic [Crawford] descriptions” because the report was akin to testimony, prepared at police request to aid in a prosecution, and offered into evidence to prove an element of the charged crime. Id

 In State v. Weaver, we held that laboratory results obtained during the course of an autopsy were testimonial. 733 N.W.2d 793, 799–800 (Minn. App. 2007), review denied (Minn. Sept. 18, 2007). The following facts were determinative: the test results were obtained at the medical examiner’s request during an autopsy that occurred during a homicide investigation; the doctor relied on the results in reaching a conclusion on the cause of death; the underlying information was relayed to the jury “in lieu of testimony” at the trial; blood samples were sent to the laboratory after the medical examiner “preliminarily determined that arson had occurred and after appellant had been arrested;” and the technician performing the tests “would have known that the medical examiner’s office was a medical-legal operation.” Id.

And in State v. Johnson, we determined that the district court plainly erred by allowing the state to present an autopsy report through a doctor who was not one of the medical examiners who performed the autopsy. 756 N.W.2d 883, 892 (Minn. App. 2008), review denied (Minn. Dec. 23, 2008). We rejected the idea that the medical examiner’s statutory autopsy duties were “sufficiently independent” of a criminal investigation to render the autopsy report nontestimonial. Id. at 889–90. We pointed out that “Johnson was arrested at the scene. And the autopsy was not performed until approximately 33 hours after death, by which time a homicide investigation presumably had begun.” Id. at 890.

The court declines to find a confrontation violation by doubling down on a confusing record about the time when the radiologist made his report. The defense said that the report of the radiologist came after the police began its investigation and so it was made "in anticipation of litigation." The rub, however, is some sloppy paperwork at the radiologist's office. The time on the report, itself, is "10:34", without a succeeding "a.m. or p.m." This omission allows the court to pronounce that the time notation is "military" time.  No one claimed that the police investigation had begun before 10:34 a.m.; indeed, it's the conclusion of the court that these two events occurred independently of each other more or less at the same time. Consequently, the report wasn't prepared "in anticipation of litigation."  

Court Rejects Evidentiary Rulings in Upholding Murder One Conviction

State v. Fraga, Minn.S.Ct., 6/28/2017.  Two juries have convicted Mr. Fraga of first degree murder.  The Supreme Court reversed the first conviction because the trial court seated an actually biased juror.  Read about that here.  This go round Mr. Fraga complains about various evidentiary rulings, which are reviewed under either abuse of discretion or plain error.  Although it takes her twenty-eight pages to do so Chief Justice Gildea has little trouble in rejecting these trial errors.

Mr. Fraga killed S.R., his two year old niece.  In addition to evidence of the charged homicide, the state presented evidence from one of Mr. Fraga's children, identified only as "Child B." Child B initially denied knowing anything about S.R.'s death, or about Mr. Fraga sexually abusing her in the past.  Three years after S.R.'s death, Child B admitted that Mr. Fraga had sexually abused her and that she had witnessed Mr. Fraga kill S.R.  Mr. Fraga disputed all of this, including killing S.R.  His lawyers impeached Child B with her previous inconsistent statements, even though she admitted to those statements during her direct testimony, but they also wanted to improve upon that impeachment by playing the three recorded interviews of  Child B.  The defense said that playing the recordings would assist the jury in evaluating Child B's credibility.  Among other things, the defense said, the recordings would rebut Child B's claim that she had lied during these interviews because she was afraid.

The trial court said, no, that under Rule 403 the probative value of playing the three some hours of recordings was outweighed by its potential to confuse the issues, mislead the jury, cause undue delay or waste of time, or needlessly present cumulative evidence: 

After reviewing the recordings, the district court denied Fraga’s request to play the entire 2.3 hours of audio and video interviews. In explaining its ruling, the court observed that Child B had admitted the prior inconsistent statements, and it concluded that the probative value of the recorded interviews was outweighed by the considerations of Minn. R. Evid. 403 (noting that evidence may be excluded where its probative value is substantially outweighed by its potential to confuse the issues, mislead the jury, cause undue delay or waste of time, or needlessly present cumulative evidence).

This ruling, Mr. Fraga said, violated his constitutional right to present a complete defense, as well as various other evidentiary rules.  The court doesn't reach the constitutional claim because it concludes that the proffered recordings didn't comply with any rule of evidence that the court could conjure up.

Mr. Fraga made other evidentiary challenges to the conviction, none of which did the court accept.  Of some note, in a pretrial ruling, the defense sought to exclude testimony that Mr. Fraga sold "adult videos" and possessed one such video.  The state believed that Child B might testify that Mr. Fraga had a "box of adult videos" so evidence that he sold them and that police did find one such video tended to corroborate Child B's expected testimony. The trial court agreed and denied the defense request.  It turned out, however, that neither the state nor the defense asked Child B about adult videos.  Instead, evidence that Mr. Fraga sold adult videos came in, without objection, from another witness, (as did evidence that police found one such video).  The failure to object to the receipt of this evidence from a different witness allowed the Chief to cherry pick the pretrial objection and ruling as a "conditional" ruling: it's admissible in anticipation of Child B's expected testimony.  When that didn't happen the defense should have objected to the other witness's testimony; not having done so sent review of this claim into "plain error" land, where Mr. Fraga could not show that the error, if any, impacted his substantial rights.