A Testifying Defendant May Be Impeached by a Conviction That Occurred After the Charged Offense

State v. Souder, Minn.Ct.App., 9/25/2017.  The state charged Ms. Souder with criminal damage to property.  She testified.  The trial court permitted the state to impeach Ms. Souder under Evidence Rule 609 with a conviction (and its underlying conduct) that had occurred after her charged offense.  Here's what the pertinent part of the rule says:

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.

Does the phrase "has been convicted of a crime" refer only to convictions that occurred prior to the charged offense, or is its sweep broader to include convictions that occurred before the testimony being impeached?  Ms. Souder pointed out that in State v. Ihnot, 575 N.W.2d 581 (Minn. 1998) the court said that the ten year calculation ends on the date of the current charged offense.  On the other hand, the rule makes no distinction between a defendant witness and all other witnesses.  Ms. Souder's interpretation would suggest that the rule applies differently to these categories of witnesses which the court saw no reason to do.  So, Rule 609 does not preclude evidence of a criminal defendant's conviction from being admitted to impeach simply because the conviction and underlying offense occurred after the defendant's charged offense.

A "School Zone" Under Drug Laws Includes All City Blocks That Surround a School Property

Lapenotiere, Jr., v. State, Minn.Ct.App., 9/25/2017.  Selling drugs in a "school zone" is a second degree controlled substance offense. A "school zone" has two statutory definitions:  "the area surrounding the school property ... to a distance of 300 feet or one city block, whichever distance is greater."  Mr. Lapenotiere, Jr. sold drugs at his home.  It's the "one city block" that's in play; the state did not claim that Mr. Lapenotiere"s home was located within three hundred feet of the school property.

Mr. Lapenotiere, Jr. said that only those "city blocks" which share a border with the school property meet the statutory requirement.  Imagine - because I'm not able to reproduce it here - a 3x3 square which is divided into 9 smaller squares of equal size.  The "school property" is in the middle square.  Mr. Lapenotiere, Jr. said that only the four squares that touch the "school property" square count. Because his house is in the upper left square it doesn't count.  

Well, it's a clever argument but not a winning one.  The court says that all eight of the blocks in the 3x3 square meet the statutory requirement.  

No Retroactive Application of "New Rule" Announced in State v. Her

State v. Meger, Minn.S.Ct., 9/20, 2017.  Mr. Meger pleaded guilty to failure to register as a predatory offender in exchange for a downward departure sentence.  Because the sentence did not include a conditional release period, which should have been imposed because Mr. Meger was a risk-level III offender, the trial court eventually amended Mr. Meger's sentence to include a ten year conditional release period.  This was all going on back in 2006-07.  

Roughly nine or so years later the Minnesota Supreme Court said that the fact of being a risk-level III offender had either to be admitted by the defendant or found by a jury beyond a reasonable doubt before a court could impose this ten year conditional release period.  State v. Her, 862 N.W.2d 692 (Minn. 2015).  By this time, Mr. Meger had long since served his sentence and so his conviction was "final" for purposes of retroactivity jurisprudence.  He sought to have Her applied retroactively to his conditional release period.

Mr. Meger only argued that Her was an "old rule" which Teague says applies both to cases on direct review and to cases on collateral attack.  He said that this is so because Her is nothing more than an application of the Blakeley" decision -plead and prove the facts to get a longer sentence than would otherwise be the case -to the specific circumstances of Mr. Her. Justice McKeig says that, no,  that Her is a "new" rule and thus does not apply retroactively to a decision that is "final."  Teague v. Lane, 489 U.S. 288 (1989); Danforth v. State, 761 N.W.2d 483 (Minn. 2009).   After reviewing a bunch of cases she concludes:

Without the benefit of Descamps and Her, and considering our holdings in Allen, Henderson, and McFee, reasonable jurists at the time Meger’s amended sentence became final would not have felt compelled by existing precedent to rule in his favor on the question of whether an offender’s risk level falls within the prior-conviction exception. Accordingly, we conclude that Her is a new rule that is not retroactive to Meger’s amended sentence. See Butler, 494 U.S. at 415; Houston, 702 N.W.2d at 271.

Disturbing A Meeting Section of Disorderly Conduct Statute Is Facially Unconstitutional Under First Amentment

State v. Hensel, Minn.S.Ct., 9/13/2017.  So far September has been David Stras month up at the Judicial Center.  Elsewhere too, for that matter and a rather destructive one at that.  Last week the Justice delivered a near-fatal blow to the "rule of lenity;" here, the Justice throws out a portion of the disorderly conduct statute, saying that it is facially unconstitutional under the First Amendment.  In doing so the court reverses the court of appeals and draws a dissent from two of three dissenters from the previous week:  Justice G. Barry Anderson and the Chief Justice. 

At the first of two meetings of the Little Falls City Council Ms. Hensel, sitting in the front row, held up signs which displayed dead and deformed children.  The signs, one of which was on her head, obstructed the view of those seated behind her.  Eventually, even though those whose view was obstructed were invited to sit in some chairs that were normally not used during council meetings, the council adjourned prematurely.  At the next meeting Ms. Hensel moved a chair into a sort of DMZ between the public seating area and the dais where the council sat.  She refused multiple requests to return to the general seating area, during which she had words with the city attorney among others.  When she persisted in not moving back to the general seating area an officer escorted her out of the room.

Whereupon the state charged Ms. Hensel under a section of the disorderly conduct statute that says:

Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:

. . .

(2) disturbs an assembly or meeting, not unlawful in its character . . . .

Justice Stras concluded that this statute is "broad and unambiguous, prohibiting any conduct or speech that 'disturbs an assembly or meeting,' whether expressive or not."  Raising one's voice would be enough to violate the statute (as in, say, a heated cross examination or an argument around the dinner table with an unruly child).  After hauling out the dictionaries to define various words in the statute the Justice sums up: 

Combining its component parts, the statute prohibits any activity, whether expressive or not, that “interferes with” or destroys the “tranquility” of any lawful “gathering of people” who share a common purpose or reason for gathering, so long as the individual knows, or has reason to know, that the activity will, or will tend to, disturb others. Minn. Stat. § 609.72, subd. 1(2). This statute presents us with a “criminal prohibition of alarming breadth.” Stevens, 559 U.S. at 474. It criminalizes a public speech that “criticize[s] various political and racial groups . . . as inimical to the nation’s welfare.” Terminiello v. City of Chicago, 337 U.S. 1, 3 (1949). It prohibits an individual from wearing a jacket containing an offensive inscription to a meeting. See Cohen v. California, 403 U.S. 15, 16 (1971). And certainly, it would forbid someone from burning the American flag on a public street. See Texas v. Johnson, 491 U.S. 397, 399 (1989). 

The statute thus facially violates the First Amendment overbreadth doctrine.  The Justice was unwilling to narrow the statute to survive this facial infirmity and so the court wipes it off the books.  Justice B. Barry Anderson, joined by the Chief Justice, wrote in dissent that the statute could be saved by a narrowing construction that only punished conduct and not speech.  

Court Strikes Death Blow to "Rule of Lenity"

State v. Thonesavanh, Minn.S.Ct., 9/6/20177.  At first blush this is a garden variety motor vehicle theft case but with an urban paranoid twist.  What it's really about is the gutting of the rule of lenity in criminal cases.

J.V. started up his car and left it running in his driveway before departing for work.  Mr. Thonesavanh knocked on J.V.'s door; instead of answering the door J.V. called the cops.  The cops found Mr. Thonesavanh sitting in J.V.'s car, doors locked and the rear lights illuminated.  The state charged Mr. Thonesavanh with motor vehicle theft:

(a) Whoever does any of the following commits theft . . . :

. . .

(17) takes or drives a motor vehicle without the consent of the owner or an authorized agent of the owner, knowing or having reason to know that the owner or an authorized agent of the owner did not give consent . . . .

Minn. Stat. § 609.52, subd. 2(a)(17) (emphasis added).

No one said that Mr. Thonesavanh drove J.V.'s car so the fight was over whether he took it.  The trial judge and the court of appeals said that he didn't take the car; all seven of the Justices disagreed with that conclusion.  But, again, that's not what the case is about.

Justice Stras, fresh off Senator Frankin's rebuff of the Justice's nomination for a seat on the already ultra-conservative Eighth Circuit Court of Appeals, hauls out the dictionaries as well as the rules of English grammar to determine that, indeed, Mr. Thonesavanh took J.V.'s car. There are, it turns out, sixty-one definitions of the word "take" when it's used as a transitive verb. Yes, the Justice believes, somewhat skeptically - read footnote 2 - that the legislature knows what a transitive verb is. Not all of these definitions were even remotely the same.  Some of these sixty-one transitive verb definitions require movement - "to carry in one's possession" - and some do not - "to seize with authority or legal right". This being a theft statute, the Justice eliminates sixty of the transitive verb definitions of "take" and goes with "to carry in one's possession." Or, to possess the car "adversely."

So, Mr. Thonesavanh took J.V.'s car by sitting in it behind the wheel with the door locked and the rear lights illuminated.  

That could have been the end of things but wait there's more. Justice Stras's real objective here is to knock the legs out from under the "rule of lenity,"  which requires a court to construe an ambiguous criminal statute in favor of a defendant.  The court of appeals, after having hauled out its dictionaries and settling on a different transitive verb definition of "take," one that does require movement, had relied upon this rule to affirm the trial court's dismissal of the motor vehicle theft charge. Justice Stras admits that application of the rule of lenity would mean that Mr. Thonesavanh wins, something he and the majority weren't willing to allow.  So, he throws up two by and large insurmountable impediments to its application.  First he announces, despite previous Minnesota cases to the contrary, that the rule of lenity is a rule of last resort.  Only after you've considered any and all other "canons of construction" without success can a court resort to this rule.  Second he adopts an extremely harsh definition of that rule:

“[T]he rule of lenity . . . applies to the interpretation of criminal statutes when ‘a grievous ambiguity or uncertainty in the statute’ remains after we have considered other canons of construction."

Not just any old ambiguity will do; it must be a "grievous" one. 

Justice G. Barry Anderson dissented.  He said that the theft statute was not ambiguous and thus there was no need to dive into the definition and application of the rule of lenity.  He found that the statute did not require movement of the vehicle.  On the rule of lenity he thought that Justice Stras was playing a bit fast and loose with prior case law:

Even when we have described the rule of lenity as one of last resort, we have rarely ruled against the defendant when presented with an ambiguous criminal statute. See, e.g., Nelson, 842 N.W.2d at 444; State v. Rick, 835 N.W.2d 478, 485-87 (Minn. 2013) (holding that the communicable-disease statute was ambiguous, and ruling for the defendant based on the rule of lenity and relevant legislative history); State v. Leathers, 799 N.W.2d 606, 611 (Minn. 2011) (ruling for the defendant in light of an ambiguous criminal statute based on the doctrine of in pari materia and the rule of lenity). The court cites only two instances in which we have ruled against a defendant when a criminal statute was ambiguous. First, in State v. Sullivan, we held that there was “some ambiguity” in the statute and we resolved that ambiguity in favor of the State by reading the statute as a whole. 71 N.W.2d 895, 900 (Minn. 1955). But because we never discussed the rule of lenity, Sullivan is of little help here. Second, in State v. Al-Naseer, we were presented with five possible interpretations of the statute: two that the State supported, one that the district court applied, one that the defendant advocated, and one that the court of appeals applied. 734 N.W.2d 679, 684 (Minn. 2007). Although the court is correct that we ruled in favor of the State because we accepted one of the State’s proposed interpretations, we did not adopt the least defendant friendly of the options. Id. at 685-89. In fact, we used the rule of lenity to reject the more extreme interpretation supported by the State. Id. at 685-86.

Getting to the level of ambiguity required Justice Anderson points out that SCOTUS has supplied at least four different answers to that question.  "These varying articulations of when the rule of lenity applies are not merely different ways of saying the same thing—the outcome of a particular case often depends on which formulation of the rule the Court employs. See Daniel Ortner, The Merciful Corpus: The Rule of Lenity, Ambiguity and Corpus Linguistics, 25 B.U. Pub. Int. L.J. 101, 105 (2016). He concludes with this biting observation:

We need not decide here which option for either of these issues is best. I point out only that the court has arguably chosen the least defendant-friendly option for both the rule of lenity’s position among other interpretive aids and the amount of ambiguity that must exist for the rule of lenity to apply. The result is a rule of lenity that will rarely apply

Chief Justice Gildea joined Justice G. Barry Anderson's dissent. Justice Chutich joined so much of that dissent that concluded that the statute was unambiguous and did not require movement.

Continuance Without Adjudication Authorizes Juvenile Court to Order Restitution

In the Matter of the Welfare of I.N.A., Child, Minn.Ct.App., 9/5/2017.   I.N.A. pleaded guilty to criminal damage to property. The juvenile court continued the case without adjudication, imposing various conditions, one of which was to pay restitution in excess of twelve grand.  

On appeal, I.N.A. argued that when the juvenile court does not adjudicate delinquency it does not have statutory authority to order restitution as a condition of the continuance without adjudication. There are multiple statutes that get put in play to answer this question.  The juvenile delinquency restitution statute says:

If the court finds that the child is delinquent, it shall enter an order making any of the following dispositions of the case which are deemed necessary to the rehabilitation of the child:

. . . .

(5) if the child is found to have violated a state or local law or ordinance which has resulted in damage to the person or property of another, the court may order the child to make reasonable restitution for such damage[.]

Minn. Stat. § 260B.198, subd. 1 (2016). 

During a continuance without adjudication the juvenile court can also order restitution.  Minn.Stat. 260B.198, subd. 7(a).  Finally, the general restitution statute says:

“A victim of a crime has the right to receive restitution as part of the disposition of a criminal charge or juvenile delinquency proceeding against the offender if the offender is convicted or found delinquent.” Minn. Stat. § 611A.04, subd. 1 (emphasis added). 

The court of appeals goes with subdivision 7 and concludes that even when the juvenile court continues a child's case without a finding of delinquency it retains the authority to pay reasonable restitution.

Having reached that conclusion, the court also determined that the juvenile court did not make adequate findings to support the disposition:

The district court found that ordering I.N.A. to pay “smaller” monthly installments of restitution “serves to rehabilitate [I.N.A.] by demonstrating the amount of time and money that goes into maintaining our cities’ public park systems.” While this may be an implicit finding regarding “why public safety and the best interests of the child are served by the disposition ordered,” it is not an explicit written finding addressing the statutory factors. Further, the district court did not explicitly discuss in its written order what alternative dispositions were recommended to the court and why such recommendations were not ordered. 

The court also determined that the juvenile court had not adequately explored I.N.A.'s ability to pay the twelve grand:

We cannot determine based on the record and restitution order before us whether the district court abused its discretion by making a finding unsupported by the evidence or against logic and the facts on record, because the order is unclear as to how much the district court expects I.N.A. to actually pay per month, and over what period of time. By ordering “smaller monthly installments,” we are unsure whether the district court meant that the total $12,529.90 would be divided up equally into smaller payments during I.N.A.’s continuance without adjudication, or whether the court meant to require I.N.A. to pay small, good-faith installments during the stay-of-adjudication period.3 The difference between these two dispositions is substantial, particularly for a child in I.N.A.’s situation, and additional findings would aid our analysis of whether the district court fully considered I.N.A.’s income, resources, and obligations to pay such restitution. Further, if the district court meant “small” good-faith payments, and a balance would remain after the stay of adjudication, it is unclear if the court anticipated that this balance would be docketed as a civil judgment against I.N.A. pursuant to Minn. Stat. § 611A.04, subds. 1(c), 3 (2016). If a civil judgment is to be docketed, the record and restitution order does not indicate whether the district court considered the lasting impact that such a large judgment could have on I.N.A. in the future.

Warrantless Dog Sniff From Common Hallway Of Apartment Door Violated Both Fourth Amendment And State Constitution

State v. Edstrom, Minn.Ct.App., 9/5/2017.  Police got a tip that Mr. Edstrom was selling methamphetamine our of an apartment in Brooklyn Park.  An investigator did some due diligence on the tip - he apparently did not establish whether the informant had provided reliable information in the past - and then invited another officer to bring over his narcotics sniffing dog to the common hallway of the third floor of the apartment building that the informant had specified.  The dog came over and commenced sniffing the apartment doors. 

This apartment building is secured but management graciously provides a key to the local constabulary so that they can get into the building.  The dog got a hit on one and only one of the third floor apartment doors. The officers then sought and obtained a search warrant for this apartment and found inside a bunch of methamphetamine, multiple firearms, etc. The state charged Mr. Edstrom, who was inside the apartment at the time of the execution of the search warrant with a host of drug and firearms charges.  He moved to suppress all that evidence, saying two things:  first, that the search warrant was the product of an unconstitutional dog sniff of the outside of the apartment door; and second, that the door to the apartment was "curtilage" for which he had a reasonable expectation of privacy.  The trial court denied the motion, concluding that the officer had a legitimate reason to be in the common hallway on the third floor and that the area immediately outside an apartment door in a common hallway is not "curtilage".

Mr. Edstrom did not complain about the use of management's key to get into the apartment building.  Rather, his complaint was about the dog sniffing outside his apartment door.  He pointed out that SCOTUS has said that a home's front porch fit the definition of a "curtilage" and that this is no different. Florida v. Jardines, 569 U.S. 1 (2013). The court of appeals reminded Mr. Edstrom that it had concluded in State v. Luhm, 880 N.W.2d 606 (Minn.Ct.App., 2016), that the area immediately outside a resident's door in a secured, multi-unit condominium was not "curtilage."  That being the case, the court rejected Mr. Edstrom's property rights argument and turned to his expectation of privacy argument.

Jardines did not address the privacy argument, but Justice Kagan did in her concurrence, concluding that the warrantless use of a narcotics dog did violate privacy rights.  The court keyed off this concurrence to conclude that the warrantless "intrusion" as it were by the dog sniff violated Mr. Edstrom's legitimate expectation of privacy.  The court also relied upon a Seventh Circuit case that came to the same conclusion, United States v. Whitaker, 820 F.3d 849 (7th Cir. 2016).  The court also determined that the state's comparable Fourth Amendment constitutional provision was also violated.

Predatory Offender Statute Is Not Penal And Thus Does Not Implicate Fifth Amedment

State v. LaFountain, Minn.Ct.App., 8/28/2017.  Mr. LaFountain is required to register under Minnesota's predatory offender registration laws.  In October, 2015 he was convicted of violating those registration requirements but that's not what this case is about.  Keep reading. About three weeks after this conviction local sheriff's deputies confirmed that Mr. LaFountain no longer lived at the address he'd given to the registry officials, and that he no longer worked for the employer that he'd listed with them.

A week later Mr. LaFountain showed up at the local law enforcement center and told them that he needed to update his registration information.  The deputy pulled up the file and noticed that Mr. LaFountain was out of compliance and had been out of compliance for some time.  The deputy asked Mr. LaFountain what was up that that;  Mr. LaFountain essentially confessed, stating that he understood the registration requirements generally, and he knew that he was supposed to have updated his address within five days of changing it. He went on to tell the deputy some explanation that he'd been evicted from his registered address but still had some stuff there and didn't get everything out until just a day or so ago.The deputy then told Mr. LaFountain that the county attorney had already been sent a report about his noncompliance.

Sure enough the state charged Mr. LaFountain with failure to register. He moved to suppress the statements that he'd made to the deputy when he had gone down to update his registration information.  He said that those statements had been made in violation of his Fifth Amendment privilege against self incrimination.  The trial court denied this motion, saying that the predatory registration statute was civil and regulatory, rather than penal, and so no Fifth Amendment privilege was implicated.

The court of appeals continues to say that the registration statute is not a criminal statute.  The court reviews the tortured history of Minnesota's registration statute, and its interpretation.  Although not implicating the Fifth Amendment the Minnesota Supreme Court has two times said that the registration statute is not penal: Boutin v. LaFleur, 591 N.W.2d 711; Kaiser v. State, 641 N.W.2d 900 (Minn. 2002); and the U.S. Supreme Court has reached the same conclusion in Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140.

But, Mr. LaFountain said, look at State v. Jones, 729 N.W.2d 1 (Minn. 2007), where the court said that Minnesota could prosecute an enrolled tribal member for failure to register even when that offense occurred on that member's reservation.  The court reached this conclusion by saying that the registration statute was "criminal/prohibitory" and not "civil/regulatory."  Although Mr. LaFountain thought he had the court on this, he didn't:

We acknowledge that our use in Boutin and Kaiser of the terms “punitive”—which we used interchangeably with “criminal”—and “civil, regulatory” could cause confusion in our analysis under the Cabazon/Stone test, which distinguishes conduct that is “criminal/prohibitory” from that which is “civil/regulatory.” But “punitive” is not the same as “prohibitory,” and the definition of “regulatory” under the [Mendoza-Martinez] analysis of Boutin and Kaiser does not have the same meaning as “regulatory” employed by Pub. L. 280 and Cabazon.  

Not only that, more recently, the court pointed out that the Minnesota Supreme Court had recently declined to overrule Kaiser and concluded that a defense attorney's failure to advise a defendant about predatory registration requirements before entry of a guilty plea did not violate a defendant's right to effective assistance of counsel.  Taylor v. State, 887 N.W.2d 821, 825 (Minn. 2016).  Minnesota continues to adhere to the "collateral consequences" dichotomy and registration is one of those "collateral consequences."

Mr. LaFountain also argued that the registration statute compelled him either to provide information or face a criminal charge for failing to do so and thus his answers were compelled in violation of the Fifth Amendment.  The trial court, however, had made a finding that Mr. LaFountain's statements were voluntary and so there was no compulsion:

We therefore conclude that LaFountain’s statements to the investigator are not compelled for Fifth-Amendment purposes, and his voluntary decision to speak to the investigator does not implicate a privilege against self-incrimination

Even in A Bench Trial A Defendant Must Be Afforded An Opportunity To Wear Street Clothes

State v. Hazley, Minn.Ct.App., 8/28/2017.  Mr. Hazley waived his right to a jury trial.  The previous day, before he'd done that, the trial judge told him that he would "have to be out of [his] jail clothes" during the jury trial.  There was no further discussion of trial attire and Mr. Hazley appeared before the trial judge in his jail jump suit.  The trial judge found him guilty of third degree burglary.  Mr. Hazley said on appeal - not during trial so this is a "plain error" review - that he was entitled to a new trial because he'd had to wear his jail jumpsuit during the bench trial.

Mr. Hazley said that this was so both on constitutional and criminal rules arguments.  Compelling a defendant to wear jail clothes at trial is a due process violation.  Estelle v. Williams, 425 U.S. 501 (1976); State v. Lehman, 749 N.W.2d 76 (Minn.Ct.App. 2008), reviewed denied (Minn. Aug. 5, 2008).  A defendant must, however, object to wearing jail clothes at trial, which Mr. Hazley didn't do.  For that reason, there was no error, one of the requirements under "plain error" so he cannot prevail on his due process claim.

The criminal rules are another matter.  The pertinent rule says that  “[d]uring trial, an incarcerated defendant or witness must not appear in court in the distinctive attire of a prisoner.” Minn. R. Crim. P. 26.03, subd. 2(b).  The rule make no distinction between a jury trial and a bench trial and so the court construes it to apply to both.  For Mr. Hazley, however, there is no prejudice to his appearance in jail clothes because the fact finder - the judge - already know that Mr. Hazley was in custody.

The takeaway here is that even for a bench trial a defendant must be affirmatively asked whether she wants to appear in jail or street clothes.