Where Risk of Self-Incrimination Is "Obvious" Witness May Assert Privilege Vicariously Through Counsel

Martin v. State, Minn.S.Ct., 6/17/2015.  Mr. Martin is serving a life sentence with no possibility of parole.  He committed the crime as a juvenile, was automatically certified to adult court, and was automatically sentenced to life without possibility of release upon conviction. A couple of years ago, after his conviction and sentence were affirmed on direct appeal, Mr. Martin filed a post conviction petition in which he alleged that because of recantations by two state witnesses he was entitled to a new trial.  The post conviction court summarily denied that petition, but the supreme court sent the case back to the post conviction court for an evidentiary hearing on the recantation claim.

In the meantime, Mr. Martin filed a second post conviction petition in which he claimed that the holding of Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012) should be applied retroactively. The post conviction court held a hearing on both petitions.  The recantation claim didn't go so well.  The state presented evidence that Mr. Martin had procured the two witness recantations by means of coercion and threats to the witnesses and their family members.  

One of the witnesses appeared only through counsel, who asserted his client's Fifth Amendment privilege and moved to quash the subpoena directed to his client.  The post conviction court granted that motion to quash the subpoena.  On appeal, Mr. Martin complained that the witness first needed to be sworn before the privilege could be asserted.  Justice Dietzen, writing for the full court on this issue, said, no, that because risk of self incrimination was obvious - the witness either lied during his trial testimony or in his sworn affidavit - assertion of the privilege did not require the witnesses' presence.

Alternatively, Mr. Martin argued that the post conviction court should have granted this witness judicial immunity.  The immunity statute, however, Minn.Stat. 609.09, subd 1, is only triggered when the state requests that the court grant immunity to a witness. Because the state didn't make that request, the post conviction court had no authority to grant it.  See State v. Pierce, 364 N.W.2d 801 (Minn. 1985).

On the juvenile life without possibility of release, six justices continue to believe that Miller is not retroactive.  Justices Anderson and Lillehaug agree, but acknowledge that other courts have ruled on the question the other way and just wish that the U.S. Supreme Court would resolve it.  Justice Page dissented, for the reason that he dissented in Chambers  and Roman Nose, that Miller  should be applied retroactively.

On Facts of This Case, Failure to Record Interrogation That Occurred in Another State By Non-Minnesota Officers Does Not Require Its Exclusion

State v. Castillo-Alvarez,, Minn.S.Ct., 9/11/2013.  This comes up from the court of appeals.  Read here.  Mr. Castillo-Alvarez ordered some guys to kidnap and murder a lower level drug dealer over an unpaid invoice for merchandise.  The guys grabbed the drug dealer in Iowa but actually killed him in Minnesota.  Mr. Castillo-Alvarez fled to Mexico but eventually that country extradited him back to Iowa to face charges there.  Once back in the country an FBI agent and an Iowa cop interrogated Mr. Castillo-Alvarez; the officers did not record the interrogation.  The Iowa convictions got tossed for violating Mr. Castillo-Alvarez’s speedy trial rights.  The show then came over into Minnesota.

This Opinion by Chief Justice Gildea is like old home week.  No less than three cases of mine – Sanders, Obeta II (yes, Obeta), and Waddell - get mentioned. 

Mr. Castillo-Alvarez argued, as he did in the court of appeals, that Minn.Stat. 609.045 and the double jeopardy clause of the Minnesota Constitution prevented his prosecution in Minnesota for the same crimes that had been prosecuted in Iowa.  The Supreme Court said that “conviction” under the statute meant a final one, and not one that had been tossed.  Mr. Castillo-Alvarez agreed that the federal double jeopardy clause did not bar prosecution in Minnesota; instead, he wanted the court to expand double jeopardy protection under the state’s provision.  The court was unwilling to do that.

The remaining issue and the one most likely to crop up in day to day life, is whether the failure to have recorded Mr. Castillo-Alvarez’s interrogation over in Iowa required its exclusion in Minnesota.  Now, in my law school days, this was known as a “choice of law” question.  The Supreme Court had ducked this question a few years back in State v. Sanders, 775 N.W.2d 883 (Minn. 2009).  The Court now gives a fact specific answer, under an analysis it calls “most significant relationship.”  It goes something like this:

Under this approach, the law of the state with the most significant relationship to the evidence controls, even if it conflicts with the law of the forum, unless applying the law of the state with the most significant relationship would be contrary to a strong public policy in the forum.

A bit squishy.

Under this “test” Iowa had the “most significant relationship.”  At the time of the interrogation, there were no Minnesota charges pending.  No Minnesota officer either initiated or participated in the interrogation.  Only officers from Iowa – one fed, one state – took part.  Since apparently Minnesota doesn’t care whether Iowa records interrogations, there is no strong Minnesota policy that requires application of the Scales rule.

This result is not a blanket invitation for the cops to arrest a suspect on Payne Avenue and then drive like hell to Hudson, Wisconsin for the interrogation.  Similarly, if the crime occurs on Payne Avenue but the Hudson cops arrest the suspect over there, they can’t call up the SPPD cops and offer to interrogate the prisoner at their place so as to avoid recording it.  So, pay attention to the facts and don’t assume that the non-recorded Texas interrogation is admissible under this opinion.

Justices Page and Stras concurred in the result, but would disagreed with the majority’s conclusion on the interrogation issue.  Justice Lillehaug did not participate. 

Exclusion of Third Party Perpetrator Evidence Does Not Violate Defendant’s Due Process Right to Present a Complete Defense

State v. Pass, Minn.S.Ct., 6/26/2013.  A jury acquitted Mr. Pass of two counts of second degree murder for the stabbing death of Tina San Roman, but deadlocked on two other counts assault and attempted murder for the stabbing of a second victim, O.A.R.  In the run up to a retrial on these unresolved counts the state (eventually) wanted to be able to tell the jury that O.A.R. had found Mr. Pass in the garage standing over Roman’s body, that Mr. Pass told O.A.R. to  help him because Roman had stopped breathing, and as O.A.R. tried to assist Mr. Pass, Mr. Pass attacked him with a knife.  Mr. Pass wanted to introduce evidence in support of his third party perpetrator defense which he admitted would be inadmissible because it would be unduly prejudicial, confuse the issues, and mislead the jury.  Mr. Pass then said that if the court agreed that his third party perpetrator evidence was inadmissible then the court should dismiss the remaining counts on a due process argument that he was being denied the right to present a complete defense.

The trial court excluded all of the proffered evidence about Roman’s death.  The court also explained that Mr. Pass could not present his third party perpetrator defense without using evidence related to Roman’s death and granted the motion to dismiss.  The court of appeals affirmed the dismissal and now Justice Stras, writing for a six member court, reverses.

The first question is whether the state can even appeal the dismissal without violating Mr. Pass’s double jeopardy rights.  If the dismissal constituted an acquittal on the merits then the state can’t appeal.  This determination turns on whether the dismissal was a resolution in the defendant’s favor of some or all of the factual elements of the offense charged.  State v. Sahr, 812 N.W.2d 83 (Minn. 2012).  Here, however, the trial court granted the dismissal motion on due process grounds, explicitly stating that exclusion of all evidence related to Roman’s injuries and death would not significantly reduce the likelihood of a successful prosecution.  So, the state can appeal.

And concludes that the trial court had excluded the third party perpetrator evidence under Rule 403 of the rules of evidence even though it didn’t really say that. That rule does permit the exclusion of evidence that is unfairly prejudicial, confusing or misleading.  But, that exclusion is “unquestionably constitutional.”  Montana v. Egelhoff, 518 U.S. 37 (1996) (plurality opinion).  The court reverses the decision of the court of appeals and sends the case back to the district court.

Court Rejects Due Process Claim of Excessive Bail

State v. Thomas, Minn.Ct.App., 6/17/2013.  After police arrested Ms. Thomas on a drug charge, the trial court released her on a conditional release.  When she didn't perform the conditions the trial court modified bail.  Ms. Thomas could either pay $25,000.00 bail for an unconditional release; or she could pay $500.00 and pay for drug testing for a conditional release.  Ms. Thomas appealed the amended release terms, saying that because she could not afford to pay for the drug testing the court had set excessive bail.  She said that her rights under the Fourteenth Amendment -not the Eighth Amendment - to due process and equal protection were violated when the trial court based her release terms on drug testing that she could not afford.

The court of appeals summarily rejects these Fourteenth Amendment challenges, opting to stay, sort of, with an Eighth Amendment excessive bail analysis.  The court observes that what the trial judge did seemed within his discretion in setting terms of release, but that's just chatter.  The court admits that it is only rejecting a Fourteenth Amendment claim - the only claim made to the trial court - and is not ruling on any Eighth Amendment excessive bail claim.  That's because that claim was neither presented to the trial court nor presented to them.

Conviction in One State That is Overturned and Dismissed on Speedy Trial Error Does Not Under State Law and Constitution Bar Prosecution and Conviction in Minnesota For Same Crimes.

State v. Castillo-Alvarez, Minn.Ct.App., 9/17/2012.  This was a particularly brutal drug murder/kidnapping, the facts of which are not all that important to the legal issues raised on appeal.  Mr. Castillo-Alvarez ordered a bunch of guys to kidnap and murder G.S.E.  These guys grabbed G.S.E. in Iowa, took him across the border into Minnesota and shot G.S.E. in the head.

Iowa got its first bite at prosecuting Mr. Castillo-Alvarez for the kidnapping and murder.  A jury over there convicted him but the Iowa appellate court threw it out for violation of his speedy trial rights.  Minnesota then hauled him into their courts and a jury convicted Mr. Castillo-Alvarez of the same crimes.

Mr. Castillo-Alvarez first argued that Minn.Stat. 609.045 prevented Minnesota from prosecuting him for crimes that he had already been convicted of across the border.  Here’s what the statute says:

If an act or omission in this state constitutes a crime under both the laws of this state and the laws of another jurisdiction, a conviction or acquittal of the crime in the other jurisdiction shall not bar prosecution for the crime in this state unless the elements of both law and fact are identical.

The court of appeals concludes that when the Iowa appellate court reversed the trial court convictions on speedy trial grounds with directions to dismiss the charges that court “erased the Iowa conviction because of the state’s speedy-trial error, and no conviction existed at the time Minnesota filed its complaint against Castillo-Alvarez.”  Had the Iowa courts reversed the convictions on evidence sufficiency grounds, the court of appeals suggests that it would have applied the statute and undertook the remaining analysis that the statute required – see that “unless the elements” end clause.

Mr. Castillo-Alvarez then made the same argument but under the Minnesota Constitution.  The court of appeals declines to construe the state constitution differently from the federal double jeopardy provision under which there is no federal violation for one state to convict an offender on the same charges that another state has also convicted that offender.  Heath v. Alabama, 474 U.S. 82 (1985). 

After the kidnapping and murder Mr. Castillo-Alvarez left for Mexico; it took a while to get him back but eventually he showed up in Houston where FBI agents interviewed him.  In keeping with FBI practice, the agents did not record that interview.  Cf., State v. Scales, 518 N.W.2d 587 (Minn. 1994).  Mr. Castillo-Alvarez argued that this statement should have been suppressed because it was not recorded.  Relying on its opinion in State v. Sanders, 743 N.W.2d 616 (Minn.Ct.App., 2008), the court continues to say that Scales does not operate beyond the state lines.  Now, it’s true that the supreme court reviewed that court of appeals opinion, but it declined to decide whether Scales applied outside the borders of Minnesota.  State v. Sanders, 775 N.W.2d 883 (Minn. 2009). You can read about that here.  That left the court of appeals decision on this question still intact.

Mr. Castillo-Alvarez made challenges to the introduction of co-conspirator statements and to the consecutive sentencing, but to no avail. 

1/3/13:  Update:  The Supreme Court has accepted review of this case.

On Reversal and Remand Permitting Defendant to Withdraw Some Guilty Pleas, State Could Re-file Initial Charges and Add New Ones

State v. Montermini, Minn.Ct.App., 8/13/2012.  Mr.. Montermini was the driver of a car involved in a two car accident back in January 2006.  One of his passengers, B.F., died as a result of the accident; six others, two of whom were also in Mr. Montermini’s car, were injured.  Mr. Montermini had been drinking heavily both before and during the car ride.  After the accident, Mr. Montermini drove away from the scene of the crash; he came upon an unlit church parking lot where he left his unconscious passengers.  An hour or so later a state trooper stopped Mr. Montermini’s car; roughly ninety minutes after that his alcohol concentration was still 0.15.

B.F. died some days after the accident, after which the state amended the initial complaint to charge Mr. Montermini with two counts of criminal vehicular homicide, three counts of kidnapping, and two counts of criminal vehicular operation resulting in substantial bodily harm.  Mr. Montermini negotiated a plea agreement whereby he pled guilty to criminal vehicular homicide, criminal vehicular operation resulting in substantial bodily harm, and three counts of kidnapping to facilitate flight; he also agreed that the state could seek permissive consecutive sentencing on the kidnapping charges.  In exchange for the plea, the state agreed to dismiss the remaining criminal vehicular homicide and injury charges, agreed not to file additional charges including third degree murder, and agreed not to seek an upward sentencing departure.  The trial court imposed consecutive 48 month sentences on the kidnappings, imposed a stayed 78 month sentence on the criminal vehicular homicide, and imposed a stayed 17 month sentence on the criminal vehicular injury.

Mr. Montermini filed a post conviction petition in which he alleged ineffective assistance of counsel.  The court of appeals agreed that counsel had been ineffective and reversed and remanded to allow him to withdraw his guilty pleas to kidnapping.  On the state’s motion, the trial court on remand vacated Mr. Montermini’s remaining pleas and convictions.  The state then added additional charges, which included murder in the third degree and more counts of criminal vehicular operation causing injury and more counts of kidnapping.  At trial, Mr. Montermini only contested his guilt to third degree murder and the kidnappings.  A jury convicted him of everything except the kidnappings.  The trial court imposed an executed sentence of 174 on the third degree murder, imposed a concurrent 13 month sentence on the criminal vehicular operation resulting I substantial bodily harm, and imposed concurrent 365 day sentences on the other criminal vehicular operation counts.

On appeal Mr. Montermini argued that the trial court erred by vacating his remaining pleas and convictions,and by permitting the state to re-file new charges.  He argued that the state waived its ability to seek an order vacating his unchallenged convictions because the state had not made that request during the post conviction proceedings.  He argued that the action exceeded the scope of the remand order.  He argued that the action violated his double jeopardy rights.  Finally, he argued that the action permitted the state to engage in serial prosecution.  The court of appeals ruled against him on all of these claims.  In the course of addressing these claims that Mr. Montermini put forward, the court seemed especially drawn to this language from the initial guilty plea:

[I]f I withdraw the plea, with the court’s approval, or if the plea is withdrawn by court order on appeal or other review:
a. I would then stand trial on the original charges.
b. The prosecution could proceed against me just as if there had been no plea of guilty and no plea agreement.

Essentially, the court’s legal analysis was  all in support of its feeling that Mr. Montermini was trying to have his cake and eat it too.  He wanted to keep his pleas and convictions to the least serious charges but forbid the state from either reinstating or adding more serious charges that had either been bargained away or foregone.

Mr. Montermini also argued that the trial court should have given an instruction on second degree culpable negligence manslaughter as a lesser included offense of both third degree murder and criminal vehicular homicide.  The defense had not requested this instruction during trial.  The court of appeals concluded that the failure sua sponte to give an unrequested lesser included offense instruction was not plain error; moreover, not making the request appeared to be a “go for broke” trial strategy.

Lastly, the court of appeals rejects Mr. Montermini’s argument that the state’s evidence was not sufficient to support the third degree murder conviction. 

Dismissal on the Merits, After Jeopardy Attaches, Precludes Filing of New Charges, Even if Dismissal Was Error.

State v. Sahr, Minn.S.Ct., 4/25/2012.  This is an extremely complicated and important Opinion about which I could write a lot, but I’m going to let the concurrence do the talking.  The Opinion raises serious questions about the respective role of the state and the defense in the prosecution of criminal cases.  Justice G. Barry Anderson said it best, certainly better than I could:

I begin with the observation that this case rests at the intersection of constitutional and statutory protections against self-incrimination and provisions of the Minnesota Rules of Criminal Procedure. The dissent argues that “the district court erred when it considered Sahr’s untimely motion to dismiss the complaint based on a known defect in the complaint after the jury was sworn.” The dissent also argues that when a defendant deliberately fails to raise a known defect in the complaint before the jury is sworn, constitutional and statutory double jeopardy protections do not bar future prosecution. The implication of this latter argument is that a defendant not only has a right, but an obligation, to challenge known defects in a complaint before trial and failure to do so not only results in a waiver of the right to challenge the complaint at a later time, it also automatically results in forfeiture of double jeopardy protections.

…..

What happened here was not the failure of the State to draft a sufficiently detailed complaint, such as was alleged to have occurred in State v. Stagg, 342 N.W.2d 124 (Minn. 1984). Here, the prosecution charged the wrong offense altogether, an offense which everyone concedes the defendant was not guilty of. Not cited by either party, but perhaps relevant here, are the provisions of Rule 9, which require the defense to inform the prosecutor in writing of “any defense, other than not guilty, that the defendant intends to assert.” Minn. R. Crim. P. 9.02, subd. 1(5) (emphasis added). The dissent dismisses this language by characterizing it as a discovery rule; perhaps, although the relevance of that characterization is not immediately evident. What it does suggest, however, is that a defendant has no obligation to tell the State it cannot prove the crime charged. The dissent cites no authority, and I have not found any, that specifically holds that the provisions of Minn. R. Crim. P. 10.01 apply to the kind of fundamental failure of the State to charge the appropriate offense at issue here.

The state charged Mr. Sahr with criminal sexual conduct in the first degree under the subsection that prohibits a person from engaging in “sexual contact” – bare genital to bare genital - with a person under 13 years of age when that person is more than 36 months older than the victim.  The problem was, which Mr. Sahr’s attorney knew practically from the day of the filing of the Complaint, the state only had proof to support the claim that Mr. Sahr had touched the victim’s bare vaginal area with his hand.  Oops.

After the jury was impaneled and sworn, defense counsel brought this little problem to the trial court’s attention.  In response, the state sought to amend the Complaint to add second degree criminal sexual conduct, a crime that the state could prove.  The trial court refused to allow the amendment and dismissed the Complaint, concluding that there was insufficient evidence to convict Mr. Sahr.  Thereafter, the state sought to file a new Complaint charging second degree criminal sexual conduct, but the trial court denied that request on double jeopardy grounds.

What the state wanted the courts to say was that defense counsel had an obligation to alert the prosecutor before jeopardy attached that it had charged the wrong crime.  The trial court rejected this proposition, saying that this would shift the burden of responsibility in charging to the defendant.  Alternatively, the state wanted to be able to get an instruction on second degree criminal sexual conduct as a lesser included offense of the first degree charge.  The trial court also rejected this request, saying that the state could not charge a crime for which it concededly lacked sufficient evidence to prove and then piggy back a lesser included crime.

Justice Page concluded that the trial court had dismissed the Complaint on the merits for lack of sufficient evidence.  This conclusion essentially dictates the result that the majority reached:  double jeopardy prohibits a new complaint against Mr. Sahr.  It’s well settled law that where there is an acquittal on the merits, double jeopardy bars review of any underlying issues, including erroneous legal rulings.  State v. Large, 607 N.W.2d 774 (Minn. 2000).  This resolution meant that the majority did not have to decide the thornier question whether Mr. Sarh somehow waived any double jeopardy protection by deliberately failing to raise a known defect in the complaint before the jury is sworn.  Even if the trial court was wrong in rejecting the waiver claim, Large precluded appellate review if the dismissal was on the merits.

Ominously, Chief Justice Gidlea and Justice Dietzen would have reached the waiver issue and would have concluded that the defense had such an obligation to tell the prosecutor that it had charged the wrong crime.  Amazingly, only the trial court judge and Justice G. Barry Anderson squarely reject this notion and say that the defense has no obligation to alert the state that it has filed a complaint that charges the wrong crime.

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.