The State’s Circumstantial Evidence Sufficiently Proved Premeditated Murder

State v. Palmer, Minn.S.Ct., 9/28/2011.  The trial court, sitting without a jury, found Mr. Palmer guilty of premeditated first degree murder, second degree intentional murder, and possession of a firearm by an ineligible person in the shooting death of Ernest Moss.  The court sentenced Mr. Palmer to life without possibility of release on the premeditated murder conviction.

Mr. Palmer’s brother, Da’Leino, fronted some crack cocaine to Mr. Moss, who promised to pay for the drugs within the week.  Da’Leino, meanwhile, owed money to his supplier.  Mr. Moss didn’t pay; Da’Leino got agitated. After a few days  Da’Leino and Mr. Palmer went over to Mr. Moss’s place and waited for him.  When Mr. Moss showed up the three argued.  When Mr. Moss threatened to call the police, Da’Leino pulled out a gun and pointed it at Mr. Moss.  Mr. Palmer then grabbed the gun from Da’Leino and shot Mr. Moss five times, firing two to three shots, pausing a couple of seconds, then firing the remaining shots.

On appeal, Mr. Palmer’s attorney argued that the evidence was not sufficient to support premeditated murder.  The supreme court underwent its Anderson circumstantial evidence routine, described thusly:

First, we must identify the circumstances proved, giving deference “to the jury’s acceptance of the proof of these circumstances and rejection of evidence in the record that conflicted with the circumstances proved by the State.” Second, we independently examine “the reasonableness of all inferences that might be drawn from the circumstances proved,” including inferences consistent with a hypothesis other than guilt.

State v. Anderson, 789 N.W.2d 227, 241-42 (Minn. 2010) (quoting State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010)).  For the evidence to be sufficient to convict of first-degree premeditated murder, a defendant must have formed the intent to kill, and then must have had “some appreciable time” in order to “consider, plan or prepare for, or determine to commit” the killing. Minn. Stat. § 609.18; State v. Moore, 481 N.W.2d 355, 361 (Minn. 1992).  The court found sufficient proof of premeditation by examining evidence of planning, motive and the “nature of the killing.”  The court then examined whether the circumstances that the state proved supported a reasonable inference other than guilt.  The court rejected Mr. Palmer’s assertion that the shooting was but a “rash impulse” rather than premeditated.  The evidence thus supported the premeditated murder conviction.  Justices Meyer, Page and Paul Anderson dissented from this conclusion.

The court rejected, on plain error analysis, Mr. Palmer’s pro se argument that the evidence more closely fit manslaughter offenses.  The court also rejected a couple other pro se arguments.

Jail Credits Denied, For Now, on Purported (But Not Really a) Consecutive Sentence.

State v. Clarkin, Minn.Ct.App., 10/3/2011, petition for further review, GRANTED, 12/21/12.  This is a jail credits appeal.  Mr. Clarkin did time in prison for a second degree assault conviction.  After his release he failed to comply with various of his parole conditions so in May 2008 a warrant issued for his arrest.  Authorities arrested him on the warrant on July 13, 2008.  Between May and July, Mr. Clarkin also allegedly spray painted graffiti on the outside of the homes of the assault victim and her father.  Mr. Clarkin denied the spray painting allegations; he was not charged but he did return to prison.

When he got out this second time, there were, curiously, eleven more similar graffiti incidents.  Police investigated and found an eye witness and a video of Mr. Clarkin spray painting.  The two groups of spray painting were the basis of a felony harassment/stalking charge, and a charge of violating an OFP.  Authorities arrested him in December, 2009.  Mr. Clarkin pleaded guilty to the harassment/stalking charge which was based on a July 5, 2008 graffiti incident.  He got a thirty-five month sentence, against which he received jail credits only from the December 2009 arrest.  By the time the trial court sentenced him, however, his assault conviction expired.

Mr. Clarkin thought he was entitled to jail credits back to July 13, 2008, arguing that authorities had probable cause to have charged him with the first two alleged graffiti incidents.  See State v. Fritzke, 521 N.W.2d 859 (Minn.Ct.App. 1994).  The trial court eventually held that the authorities did not have probable cause back in July 2008 and so Mr. Clarkin was not entitled to those jail credits.

The court of appeals saw this conundrum differently.  They could care less about probable cause.  Rather, they honed in on the Guidelines, which says that “Consecutive sentences are presumptive when the conviction is for a crime committed by . . . an offender on supervised release . . . .” Minn. Sent. Guidelines II.F.1 (2010).”  (Now, Mr. Clarkin had pointed out – something that the court of appeals not once mentions – that his assault conviction had expired so that this new sentence could be neither consecutive nor concurrent to that expired one.) The court of appeals said that because Mr. Clarkin was on supervised release when he engaged in the offense conduct (at least of conviction) – the July 8 spray painting – giving him jail credits while he was also serving (again) his assault sentence would be a de facto departure from the Guidelines.  He doesn’t get those jail credits.

The Supreme Court has granted further review.

Denial of a defendant’s motion to dismiss an indictment for first-degree murder for lack of subject matter jurisdiction is immediately appealable as of right.

State v. Ali, Minn.S.Ct. 10/12/2011.  The state charged Mr. Ali with the three shooting deaths at the Seward Market in Minneapolis.  The indictment alleged that Mr. Ali was seventeen years old on the date of the alleged offenses and thus automatically subject to trial in the district court.  Mr. Ali moved to dismiss for lack of subject matter jurisdiction based on his claim that he was only fifteen years old on the date of the alleged offenses.  The trial court denied his motion and the court of appeals concluded that this denial was not an appealable order.

The supreme court reversed the court of appeals.  The court held that the denial order was an appealable order and that the state had the burden of proof to establish Mr.Ali’s age by a preponderance of the evidence.

Rule 28.02, subdivision 2(2) has a laundry list of orders from which a defendant may immediately appeal as of right.  The order denying Mr. Ali’s motion to dismiss the indictment is not on that list.  Nonetheless, borrowing from the civil side, the supreme court says that an order denying a motion to dismiss for lack of jurisdiction is immediately appealable as of right.  Establishing Mr. Ali’s age on the date of the alleged offenses does finally determine a claim – Mr. Ali’s right to be tried in juvenile court – that is separate from his guilt of innocence and is thus appealable as a matter of right.

The court also adopts a preponderance of the evidence standard of proof, rejecting Mr. Ali’s claim that the standard should be beyond a reasonable doubt. 

No Extension of Padilla to Risk of Loss of eligibility to Posses Firearm Following Conviction

Sames v. State, Minn.Ct.App., 10/17/2011.  Mr. Sames pled guilty to misdemeanor domestic assault.  After sentencing, he moved to withdraw his plea, saying that his attorney was ineffective by not advising him that his plea would make him ineligible to possess a firearm.  He made this argument, of course, on the back of Padilla v. Kentucky, 130 S.Ct., 1473 (2010).

After sentencing, withdrawal of a guilty plea is only permitted to correct a “manifest injustice,” which exists if the plea is not accurate, voluntary and intelligent.  State v. Raleigh, 778 N.W.2d 90 (Minn. 2010).  Historically, the courts have said that a plea is still voluntary even when a defendant is unaware of what it characterizes as “collateral consequences.”  The risk of becoming ineligible to possess a firearm is such a “collateral consequence.”  State v. Rodriguez, 590 N.W. 2d 823 (Minn.Ct.App. 1999). 

Now the court of appeals was not unimpressed with the logic of extending Padilla to these facts.  Padilla acknowledged, after all, that the Supreme Court has never relied on this distinction to define the scope of a constitutionally protected right.  Loss of eligibility to posses a firearm is nearly as “intimately related to the criminal process” as is deportation, and is “nearly an automatic result” of a criminal conviction.  Even so, this is a timid panel and abjures going first.  The court can’t find a single case from any other jurisdiction that has agreed with the logical extension of Padilla that Sames urges. 

The Minnesota Supreme Court declined further review. 

Exclusion of Third Party Perpetrator Evidence Earns a New Trial; Concurrence Urges a New Look at Eye Witness Testimony

State v. Ferguson, Minn.S.Ct., 10/19/2011.  A jury convicted Mr. Ferguson of first degree premeditated murder of Irene Burks.  Mr. Burks raised eight separate issues on appeal but reversed on only one of them, a claim that the trial court had been wrong to exclude evidence of an alternative perpetrator.

Ms. Burks was standing outside a friend’s house,  “K.C.”, and K.C.’s daughter.  An African American man wearing a black hooded sweatshirt started running toward K.C.’s house; this man fired a gun six or more times in the general direction of K.C. and  Ms. Burks.  Ms. Burks later died at the hospital.  At the scene, K.C. further described the shooter as a black male, about five-nine, thin build, medium to dark complected.” K.C. said the shooter’s nose was “a little wider,” and he had “medium-sized lips.” She said the shooter was wearing a blue or black “hoodie.” Three witnesses saw an individual wearing a dark-colored hooded sweatshirt leaving the scene of the shooting.  K.C. later identified Mr. Ferguson during a six person sequential photographic lineup.

Mr. Ferguson asked the trial court to be allowed to introduce evidence that connected a Christopher Jennings, an acquaintance of Ms. Burks, to the shooting; the trial court denied this request.  Before getting to the factual basis for this claim, here’s a short summary of third party perpetrator evidence law:

All defendants accused of criminal behavior have the constitutional right to present a complete defense. State v. Larson, 787 N.W.2d 592, 597 (Minn. 2010) (citing State v. Atkinson, 774 N.W.2d 584, 589 (Minn. 2009)). Included within this right is “the right to present evidence showing that an alternative perpetrator committed the crime with which the defendant is charged.” Id. (internal quotation marks omitted). Such evidence is generally not admitted “for the purpose of establishing the alternative perpetrator’s guilt, but to create a reasonable doubt as to the defendant’s guilt.” Id. (internal quotation marks omitted). Courts may limit the defendant’s evidence to ensure that the defendant does not confuse or mislead the jury. State v. Hannon, 703 N.W.2d 498, 506 (Minn. 2005) (citing Taylor v. Illinois, 484 U.S. 400, 411 n.15 (1988).

Alternative perpetrator evidence is admissible only if the defendant makes a “threshold showing that the evidence the defendant seeks to admit has an ‘inherent tendency to connect the alternative perpetrator to the commission of the charged crime.’ ” State v. Nissalke, 801 N.W.2d 82, 99 (Minn. 2011) (quoting State v. Larson, 788 N.W.2d 25, 36-37 (Minn. 2010)). This foundational requirement “ ‘avoid[s] the use of bare suspicion, and safeguard[s] a third person from indiscriminate use of past differences with the deceased.’ ” Id. (quoting State v. Jenkins, 782 N.W.2d 211, 224 (Minn. 2010)).

Once the defendant lays foundation for the evidence by proving its inherent tendency to connect the alleged alternative perpetrator to the commission of the crime, “ ‘it is permissible to introduce evidence of a motive of the third person to commit the crime, threats by the third person, or other miscellaneous facts which would tend to prove the third person committed the act,’ in order to cast a reasonable doubt on the state’s case.” State v. Jones, 678 N.W.2d 1, 16 (Minn. 2004) (quoting State v. Hawkins, 260 N.W.2d 150, 159 (Minn. 1977)).

(Or not so short; anyway, the facts:)  Here’s what Mr. Ferguson sought to introduce in support of his third party perpetrator defense:  The police had got a tip that the person who had shot Ms. Burks was “C.,” (get it?).  C.J. was listed in her cell phone contacts and C.J. and Ms. Burks had spoken by phone three days before the shooting.  Jennings’ description was similar to that of the shooter provided by witnesses, and Jennings drove a car that matched some of the descriptions of a car seen at the scene of the shooting.  Jennings had been arrested for possession of a firearm without a permit some four months before the shooting and he was not in custody on the date of the shooting.  This evidence – in particular Jennings’ physical appearance and that of the car – suggest that Jennings was present at the scene of the shooting.  This evidence also connected Jennings both to Burks and to the crime.  As a result the exclusion of third party perpetrator evidence was an error, and it was not harmless beyond a reasonable doubt.

Justice Paul Anderson wrote a concurring opinion in which he addressed several of the other issues that Mr. Ferguson had raised on appeal.  One was the exclusion of expert testimony on the eye witness identification.  Justice Anderson pointed out that the police had not followed the “double blind” photo lineup protocol in the administration of the photo identification, and that the identification was a significant part of the state’s case.  The Justice lauds the recent New Jersey opinion, State v. Henderson, 2011 WL 3715028 (N.J. 8/24/2011), as destined “to become an important benchmark on the limitations of eyewitness identification”.  There’s plenty of good language here to support a request for introduction of such expert testimony.

Fleeing a Police Officer Can Serve as Predicate Offense under Second Degree Burglary Statute

Anderson v. State, Minn.Ct.App., 10/24/2011.  Employees at a Cub Foods believed that they saw a bunch of kids shoplifting and then jumping into a gold van driven by Ms. Anderson.  The local constabulary gave chase; Ms. Anderson eventually drove the van into a fortuitously open garage.  Everybody jumped out of the van, and closed the garage door.   The homeowner, who was upstairs changing her daughter’s diaper, upon hearing all this commotion in her house, came downstairs to find six strangers in the living room.

The state charged Ms. Anderson with second degree burglary, with fleeing a police officer in a motor vehicle as the predicate crime.  The district court found her guilty on stipulated facts; Ms. Anderson maintained that the fleeing didn’t count for purposes of the burglary statute.  She argued that the predicate crime had to be one against a person or property; and that the fleeing offense, like trespass, was complete upon her unauthorized entry into the garage.  The court of appeals rejects out of hand the first argument and then turned to the second one.  They reject that one as well.

Trespass, the court says, requires an unauthorized entry and is thus subsumed within the burglary statute that has the same requirement.  Here, Ms. Anderson was intent on eluding the police, something she thought she could accomplish by driving the van completely into the garage and then shutting the garage door.  Unlike football, where the touchdown occurs when the player breaks the plane of the end zone, fleeing requires that the player’s entire body be in the end zone.  Ms. Anderson did not complete the fleeing offense until she was able to close the garage door and thus the offense continued after the front of the van broke the plane of the garage and until the tail pipe did the same.

Car Owner Escapes Forfeiture For Now

Patino v. One 2007 Chevrolet, VIN  #1GNFC16017J255427, Texas License Plate # 578VYH, Minn.Ct.App., 10/31/2011, petition for further review granted.

In March of 2010, police stopped Ms. Patino’s significant other, Mr. Rosas, for erratic driving, only to discover that he did not have a license.  Mr. Rosas had a 2006 conviction for DWI.  In April 2010, police again stopped Mr. Rosas for suspected impaired driving; he had Ms. Patino’s ten year old daughter with him.  Mr. Rosas eventually pled guilty to third degree DWI (child endangerment).

The police served Ms. Patino, the owner of the 2007 Chevy, with notice of intent to seize and forfeit the car; she filed for a judicial determination.  After hearing, the district court said that even though Mr. Rosas was not convicted of an offense that would trigger forfeiture – second degree DWI, the state could nonetheless seize the car.

The forfeiture statute, Minn.Stat. 169A.63, says that the state can seize a car that was used in the commission of a designated offense, which translates to first or second degree DWI.  The forfeiture statute is confusing to say the least.  There’s a provision in the subsection on judicial determinations that says that if the person charged with the designated offense appears at the criminal hearing and is not convicted of the designated offense “the court shall order the property returned to the person legally entitled to it.”  Two other provisions in the forfeiture statute, however, have given the appellate court room to squirm out of forfeiture by permitting the court to look into whether the person in fact committed the designated offense even though not convicted of it.  Mastakoski v. 2003 Dodge Durango, 738 N.W.2d 411, 414-15 (Minn. App. 2007), review denied (Minn. Nov. 21, 2007). 

Second Guilty Plea After Rejection of First Plea Is No Bar to Double Jeopardy Challenge

State v. Jeffries, Minn.S.Ct., 10/19/2011.  This came up from the court of appeals.  Go here. 

The state charged Mr. Jeffries with felony domestic assault, then gave notice of its intent to seek to impose upon him an upward sentencing departure for being a career offender.  Mr. Jeffries then decided to plead guilty under a deal that called for an upward, but stayed sentencing departure.  The trial court not only accepted the plea, it pronounced Mr. Jefferies “convicted of that.”

And then changed his mind.  The supreme court said, not so fast.  You said you accepted the guilty plea and you said that Mr. Jeffries was guilty.  What’s left?  The majority rejects the claim of the chief justice that a trial judge has the discretion to withdraw acceptance of a guilty plea upon ascertaining additional information about a defendant’s criminal history; nothing in the rules creates such discretion.

This plea was not only accepted, it was “recorded” such that jeopardy attached.  See State v. Martinez-Mendoza.  This means that the second guilty plea must be vacated because the second conviction violates double jeopardy.  That second plea also did not act as a waiver of the double jeopardy claim.

One Spouse May Testify Against Other Spouse on Charge of Disorderly Conduct.

State v. Zais, Minn.S.Ct., 10/26/2011.  The state charged Mr. Zais with disorderly conduct.  When his wife swiped his garage door opener Mr. Zais began to remove some of the panels in the garage door.  The stated wanted to put his wife on the stand to testify to these acts and to the threats he’d made the previous evening to “do whatever he had to to get in” the house.  Mr. Zais asserted marital privilege to prevent his wife from testifying to these threats.  The trial court agreed with Mr. Zais and excluded her testimony. 

The marital privilege statute, Minn.Stat. 595.02, does not apply to “a criminal action or proceeding for a crime committed by one against the other.”  Mr. Zais argued that the applicability of this exception should be determined solely by the elements of the crime; the state, on the other had, said the court should examine the underlying conduct to make that determination.  The appellate court says that you have to do both.  When you do, then the exception kicks in and she can testify.

Defendant Had Sufficient Interest in Vehicle to Prohibit Prosecution For Placing Tracking Device on Vehicle.

State v. Hormann, Minn.Ct.App., 10/19/2011.  The state charged Mr. Hormann with stalking his then-wife, and with placing a tracking device on a car that she mostly drove but actually belonged to him.  The appellate court upheld the stalking conviction but reversed the tracking device conviction.

Along the way, the former wife testified generally about what a horrid marriage it had been and broadly characterized Mr. Hormann as someone who broke every door in the couple’s home, broke the walls, physically abused her, engaged in “a lot of violence,” was “very angry,” was “controlling” of her and of money – you get the picture.  The appellate court concluded that this amounted to inadmissible character evidence.  It was, however, harmless error to have admitted it.

Now to the tracking device.  The statute, Minn.Stat. 626A.35, subd. 1, does not apply “where the consent of the owner of the [vehicle] to which the mobile tracking device is to be attached has been obtained.”  In this case, Mr. Jacobs’ spouse had signed title to the car over to him even though she was the person who drove it the most.  Mr. Jacobs’ failure to have recorded that transfer did not defeat his interest in the car.    He was thus an “owner” under the statute and could not be prosecuted for placing the tracking device on the car.