Conduct Alleged To Be "Disorderly" Need Not Be Witnessed By Another Person

State v. Janecek, Minn.Ct.App., 10/9/2017.  The court of appeals takes on the quantum question, if a tree falls in the forest and there's no one around to hear, does it make a sound?  Ms. Janecek doesn't get along with her neighbor.  The neighbor made a video recording of Ms. Janecek over their trash bins; the city charged Ms. Janecek with disorderly conduct based on the video - neither the neighbors nor anyone else was actually present - and a jury convicted her of disorderly conduct.

Ms. Janecek said that the disorderly conduct statute requires that her conduct be witnessed by at least one person; sorry, video cameras don't count.  Here's what the statute 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:

. . . .

(3) engage in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger or resentment in others.

Minn. Stat. § 609.72, subd. 1.

The court employs its literalist jurisprudence and cannot find any requirement in the statute that the disorderly conduct occur in another's presence.  The court does so notwithstanding this language from State v. Reynolds, 243 Minn. 196, 66 N.W.2d 886 (1954) which pretty plainly says just the opposite:

Conduct is “disorderly” in the ordinary sense when it is of such nature as to affect the peace and quiet of persons who may witness it and who may be disturbed or provoked to resentment thereby

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.  

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.  

No Error in Jury Instruction on Accomplice Liability

State v. Smith, Minn.Ct.App., 8/21/2017.A jury convicted Ms. Smith of various counts of aiding and abetting crimes:  second degree assault, third degree assault, and simple robbery.  She complained on appeal that the trial court had given an erroneous instruction on accomplice liability and should get a new trial.

Ms. Smith and a Mr. McKee came to the home of N.N. and A.M. Upon entry, Mr. McKee pulled a bandana over his face and struck N.N. three times in the head.  A.M. said that Ms. Smith was blocking her way so that she could not get past her during the assault.  Ms. Smith and Mr. McKee then went into a bedroom where they found J.F.; A.M. gave Mr. McKee her money, prescription pills and her cell phone;  Mr. McKee and Ms. Smith then left.

Ms. Smith's instructions error focused on the requirement that the state prove that she had "intentionally aided" Mr. McKee.  The trial court instructed the jury that the state had to prove that Ms. Smith "knew her alleged accomplices were going to or were committing a crime."  Ms. Smith argued that the instruction should have been that she knew that Mr. McKee "was going to commit" a crime.  She relies upon a series of opinions that contained this "was going to commit" language:  State v. Huber, 877 N.W.2d 519 (Minn. 2016); State v. Kelley, 855 N.W.2d 269 (Minn. 2014); State v. Bahtuoh, 840 N.W.2d 804 (Minn. 2013); State v. Mahkuk, 736 N.W.2d 675 (Minn. 2007).  

Under a "plain error" analysis the court of appeals can ignore what these opinions had said.  The court emphasized that the trial court still has considerable discretion in drafting jury instructions and that these instructions adequately got the point across to the jury correctly.  In sum, the court said:

A defendant who acquires the requisite knowledge while the accomplice is in the process of committing the offense, and makes the choice to aid in its commission either through her presence or her actions, is guilty as an accomplice under the plain language of Minn. Stat. § 609.05. 

A House Is Not a "Fixture"

State v. Larsen, Minn.Ct.App., 8/21/2017.  Mr. Larsen, driving drunk, drove his car into the side of a house, and into an unattended car.  Mr. Larsen's alcohol concentration was 0.253.  A jury convicted him of felony driving while impaired, failing to notify the owner of the collision with the unattended car, and failing to notify the owner of the damaged house.  

Among other things, Mr. Larsen said on appeal that the duty to notify the property owner of damage only applied to damage to fixtures.  Here's what the statute says:

If the driver of any vehicle involved in a collision knows or has reason to know the collision resulted only in damage to fixtures legally upon or adjacent to a highway, the driver shall take reasonable steps to locate and notify the owner or person in charge of the property of that fact.

Minn.Stat. 169.09, subd. 5.  The state actually agreed with Mr. Larsen that a house was not a "fixture."  Nonetheless, the court of appeals devotes five plus pages, and four really long footnotes, to come to the same conclusion.

The court also rejected Mr. Larsen's claim that the state had not presented sufficient evidence that he had been driving the car (he admitted the same).  And, the court assumed, without deciding that the trial court had erred by not giving the jury an instruction on eye witness identification.  At trial Mr. Larsen had neither requested this instruction nor objection to its omission so it's "plain error" time for the court of appeals.

Whether An Out of State Juvenile Conviction Would Have Been Certified For Adult Prosecution in Minnesota Is Not a Blakely Jury Question

State v. Edwards, Minn.Ct.App., 8/14/2017.  A jury convicted Mr. Edwards of second degree assault.  Mr. Edwards complained on appeal that the trial judge had screwed up the jury instructions by omitting the statutory definitions of "great bodily harm" and "bodily harm".  He had not, however, made that complaint during trial so the court of appeals applies the "plain error" standard of review to reject this assertion. The court of appeals jumped straight to the third part of the "plain error" test, whether any error affected Mr. Edwards' substantial rights.  The court said, no, it didn't.

The trial court included two juvenile convictions from Wisconsin in computing Mr. Edwards' criminal history score.  The Guidelines require that the "fact finder" determine whether those juvenile convictions would have been certified for adult prosecution in Minnesota.  Mr. Edwards said that this question needed to be put to a jury under Blakely because it was a "fact" which increased the penalty for the crime beyond the prescribed statutory maximum. The court of appeals said, no, this comes under the prior conviction exception to Blakely and may be determined by the judge.  The court said that the trial court can make this determination because the fact of the prior convictions is not an element of the new crime. Whether a juvenile conviction from another state would have been certified for adult prosecution in Minnesota is also a legal question and not a "fact" question (like did Mr. Edwards have a knife when the comitted the assault).  

State v. Provost, Minn.Ct.App., 8/14/207.  This is a sentencing appeal. The state's position was that it knew that the trial judge got it wrong, but, hey, it doesn't matter, you should still affirm what everyone knew was an illegal sentence.  Here's the deal.

Mr. Provost pleaded guilty to second degree burglary.  Based upon a criminal history score of six the trial judge gave him a middle of the box sentence of forty-eight months.  That was correct at the time.  But then, Mr. Provost got the benefit of State v. Haywood, the air-powered BB gun case.  This knocked a point and a half off Mr. Provost's criminal history score.  So, he sojourned back to the burglary judge and asked for a redo on that sentence.  The burglary judge summarily denied that request.

The burglary judge told Mr. Provost, look, because of the overlap in the grid boxes the forty-eight month sentence was an authorized sentence regardless of the Haywood victory.  The court of appeals responds, no, no, an illegal sentence is an illegal sentence:

The Minnesota Supreme Court has held that a district court “must use accurate criminal history scores in order to set mandatory presumptive sentences that comply with the Minnesota Sentencing Guidelines.” State v. Maurstad, 733 N.W.2d 141, 142 (Minn. 2007). Because of this requirement, the supreme court has stated that any “sentence based on an incorrect criminal history score is an illegal sentence” that is “correctable ‘at any time.’” Id. at 147 (quoting Minn. R. Crim. P. 27.03, subd. 9). Under Maurstad, Provost’s sentence is not authorized by law, and the district court did not properly exercise its discretion when it concluded that it lacked the authority to modify his sentence. 

The court of appeals sent the case back to the burglary judge with instructions for that court to do its job:  exercise its discretion, utilizing a correct criminal history score, to determine Mr. Provost's sentence.

A Conservator Is Not a "Victim" For Purposes of Seeking Restitution

State v. Christensen, Minn.Ct.App., 8/7/2017.  Mr. Christensen stole a bunch of money from his uncle, A.C., a vulnerable adult. Lutheran Social Services was A.C.'s conservator.  Following Mr. Christensen's conviction, Lutheran Social Services, but for some unexplained reason not A.C.'s guardian, made a request for restitution on behalf of A.C.  Mr. Christensen said that a conservator was not a "victim" entitled to restitution.  Here's what the statute says about who is a "victim":

“Victim” means a natural person who incurs loss or harm as a result of a crime, including a good faith effort to prevent a crime, and for purposes of sections 611A.04 and 611A.045, also includes (1) a corporation that incurs loss or harm as a result of a crime, (2) a government entity that incurs loss or harm as a result of a crime, and (3) any other entity authorized to receive restitution under section 609.10 or 609.125. The term “victim” includes the family members, guardian, or custodian of a minor, incompetent, incapacitated, or deceased person.  

The court agrees with Mr. Christensen.  The court points out that while a "guardian" of an incompetent person could seek restitution, a "conservator" could not because conservators are not listed:

While it may be that conservators should be added to the list of victims entitled to restitution, it is up to the legislature and not this court to make that change.

Minn.Stat. 624.7142 Prohibits Only Carrying a Pistol On Or About The Person's Clothes Or Person

State v. Prigge, Minn.Ct.App., 7/31/2017.  It is unlawful to carry a pistol while under the influence of alcohol "on or about the person's clothes or person."  Minn.Stat. 624.7142, Subd. 1(4).  An officer stopped and then arrested Mr. Prigge for driving under the influence of alcohol.  The officer then impounded Mr. Prigge's car, which led to an inventory search. That search turned up a loaded handgun in the bottom of the car's center console compartment.  

The trial court granted Mr. Prigge's pretrial motion to dismiss, concluding that Mr. Prigge was not carrying the pistol "on or about his clothes or person.  The state brought this pretrial appeal.

Now, not three months ago the court looked at this same statute and concluded that it covered one who is walking down a public street "carrying" an unloaded pistol in a case.  State v. Larson.   Different facts, however, gets a different result:  The court of appeals affirms the trial court.  The statute, the court says, is not ambiguous, so it's time to haul out the dictionaries. "Carry" means "to hold or support while moving; bear," or "to hold or be capable of holding."  The American Heritage Dictionary of the English Language 285 (5th ed. 2011).  The court also looked to another statute, 624.714, subdivision 1a, which also prohibits drunks from "carrying" a pistol in public places but provides a more expansive description of "carrying":

A person . . . who carries, holds, or possesses a pistol in a motor vehicle . . . or on or about the person’s clothes or the person, or otherwise in possession or control in a public place . . . without first having obtained a permit to carry the pistol is guilty of a gross misdemeanor. 

It's those missing italicized words that saves the day for Mr. Prigge. Faced with the different language in the statutes the court is unwilling to include "carrying" a pistol in the center console:

The plain statutory language of section 624.714 prohibits a much broader range of conduct than section 624.7124. If the legislature intended the prohibition under section 624.7124 to extend to carrying, holding, or possessing a pistol in a motor vehicle or otherwise possessing or controlling the pistol, it could have done so by using the language it selected for section 624.714. It did not. 

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.  

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."  

Affirmative Misadvice About Length of Predatory Offender Registration is Ineffective Assistance of Counsel

State v. Ellis-Strong, Minn.Ct.App., 6/19/2017.  Mr. Ellis-Strong pled guilty to criminal sexual conduct in the first degree.  A conviction for this offense requires that Mr. Ellis-Strong register under the predatory offender statute for life.  At the time of the plea, however, his counsel mis-informed him that the registration period was ten years.  Before sentencing Mr. Ellis-Strong moved to withdraw his plea because, he said, his counsel's misinformation was ineffective assistance of counsel.  

Just a month or so ago the court of appeals said that an attorney's misadvice to a client about a collateral consequence does not, on its own, render a guilty plea unintelligent and manifestly unjust.  State v. Brown.  There was no ineffective assistance of counsel claim made in Brown, however.  So, for Ms. Ellis-Strong:

In sum, even though predatory-offender registration is a collateral consequence of a guilty plea, affirmative misadvice about such consequences may amount to ineffective assistance of counsel if the Strickland factors are met.

The court concludes that Mr. Ellis-Strong meets the "objective standard of reasonableness" requirement of Strickland:

Like the statute at issue in Padilla, the predatory-offender registration statute here is succinct, clear, and explicit. Ellis-Strong pleaded guilty to first-degree CSC under Minn. Stat. § 609.342, subd. 1(a). The statute governing registration of predatory offenders, Minn. Stat. § 243.166, subd. 6(d)(3) (2014), clearly states under the heading “Registration period,” that a person shall comply with the registration requirements for life if the person is required to register based on a conviction under Minn. Stat. § 609.342, subd. 1(a). As Ellis-Strong notes, despite the clarity in the statute, his attorney misadvised him that he was only required to register for ten years. 

Because the trial court did not address Strickland's prejudice requirement the court of appeals sends the case back to the trial court to address that question. 

Where Implied Consent Not Invoked Failure to Advise Motorist of Limited Right to Counsel Does Not Bar Admissibility of Test Result

State v. Hunn, Minn.Ct.App., 6/19/2017.  If an officer does not invoke the implied consent statute by reading it to the motorist, the state may still be able to introduce any test result during that motorist's DWI prosecution.  On the other hand, when an officer does invoke the implied consent statute by reading it to the motorist the officer must inform the motorist that she has a limited right to consult with counsel, that refusal, itself, is a crime, and that refusal will result in revocation of license.  The deputy sheriff who stopped Mr. Hunn did not invoke the implied consent statute and so did not inform him of his limited right to consult with counsel.  

Mr. Hunn persuaded persuaded the trial court to suppress the test results because the deputy did not tell him of his limited right to consult with counsel.  The state appealed and the court of appeals reverses that ruling.  In reaching this result the court relies upon cases that long precede McNeeley and its progeny which, the court proclaims, say that compliance with the implied consent statute is not a prerequisite for admissibility of tests for the presence of alcohol or other substances. Here's how the court of appeals sums up:

Here, as in Nielsen, and unlike the facts presented in Friedman, the deputy did not read respondent the implied-consent advisory or seek chemical testing under the implied consent law. This distinction from the facts of Friedman is significant. As a result, respondent’s decision regarding whether to consent to testing never carried a possibility of immediate license-revocation sanctions or criminal prosecution for test refusal. Instead, respondent only “faces the traditional [criminal] penalties for driving under the influence, and imposition of those penalties only after a jury trial at which he has the right to counsel.” Nielsen, 530 N.W.2d at 215. Accordingly, “[t]he process of chemical testing in this case was merely an investigatory stage which necessarily preceded the decision to prosecute.”

Mr. Hunn also argued that his consent to testing was coerced or otherwise suspect.  Because the trial court did not address this issue the court of appeals sent the case back for consideration of that claim. 

Defendant Has Burden of Proof on Rule 27.03 Motion to Correct Sentence

Williams v. State,, Minn.Ct.App., 6/12/2017.  Mr. Williams moved under Rule 27.03, subd. 9 to correct sentences that he received in two different courts.  He said that the trial courts had improperly assigned criminal history points to two out of state convictions. Importantly, at least to the court of appeals, Mr. Williams had not raised these objections at the time of either sentencing and he did not bring these sentencing corrections motions until after the time for direct appeal had lapsed.  Both Rule 27.03 courts said that Mr. Williams had the burden of proving that the criminal history score calculation was incorrect.  One of the Rule 27.03 courts also said that his motion to correct sentence also implicated the plea, thus making it the equivalent of a post conviction petition.  That court summarily tossed the sentence correction request as time barred under the post conviction statute but in doing so it did not give Mr. Williams the opportunity to be heard on the limitations questions.

At sentencing, the state has the burden of proving facts "necessary to justify consideration of out-of-state convictions in determining a defendant's criminal history score."  State v. Outlaw, 748 N.W.2d 349 (Minn.Ct.App., 2008), review denied (Minn. July 15, 2008). That's not the case for a Rule 27.03 sentencing correction motion, which is a "collateral proceeding" but not always a post conviction proceeding.  The upshot is that although a sentence that is based upon an incorrect criminal history score is an unauthorized sentence, it's the defendant who has to do the heavy lifting when this is brought to the court's attention in a collateral proceeding.

Mr. Williams does score a modest victory on the opportunity to be heard claim.  The Minnesota Supreme Court recently chided a post conviction court for summarily dismissing a petition on limitations grounds without first giving the parties an opportunity to be heard on it beforehand.  Weitzel v. State, 883 N.W.2d 553 (Minn. 2016.

Trial Court Properly Took Judicial Notice of Approval of DataMaster Breathalyzer

State v. Norgaard, Minn.Ct.App., 6/5/2017.  An officer stopped Mr. Norgaard for speeding; he refreshingly confessed to the officer that he'd just come from a bar and had consumed too much alcohol to be driving. Mr. Norgaard then agreed to take a breath test and scored an alcohol concentration of 0.13.  

Mr. Norgaard waived a jury on his DWI charge and the court found him guilty.  When the state offered the results of the DataMaster breathalyzer test Mr. Norgaard objected; he said that the state had failed to produce evidence about the reliability of that machine. The court responded by taking judicial notice that the commissioner of public safety had approved the DataMaster breathalyzer, and admitted the results.

There's a statute for that:  Minn.Stat. 169A.03, subd. 11 (2014) permits the admission of any breath test performed by a fully trained individual using an approved breath-testing instrument. That same statute permits the commissioner of public safety to approve such instruments, and the commissioner has approved the DataMaster machine.  The court says that this approval is a "legislative fact" rather than an "adjudicative fact" subject to the prohibition on judicial notice in a criminal case:

Judicial notice of adjudicative facts is not appropriate in criminal cases. See State v. Pierson, 368 N.W.2d 427, 434 (Minn. App. 1985). Adjudicative facts are facts about the parties, their activities, properties, motives, and intent. In re Guardianship of Doyle, 778 N.W.2d 342, 348 (Minn. App. 2010) (citing Minn. R. Evid. 201 1989 comm. cmt.). But courts regularly take notice of legislative facts, such as statutes, case law, and regulations, in criminal cases. Id