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

No Fifth Amendment Violation By Asking a Defendant Who Is Not In Custody Just Where He Was When the Cops Showed Up to Execute A Search Warrant

State v. Heinonen, Minn.Ct.App., 1/30/2017.  Police executed a search warrant at a house where Mr. Heinonen happened to be at the time. Officers told him that he was not under arrest although he was handcuffed.  The officers then demanded to know Mr. Heinonen's full name, date of birth, and where he was when the cops showed up.  Mr. Heinonen provided that information, including that he had been in the southwest bedroom.  The cops then took Mr. Heinonen out to a squad car, read  him his Miranda rights, when he invoked.

Police found ammunition and a short barreled shotgun  in the southwest bedroom.

At the jail, an officer asked Mr. Heinonen to consent to a DNA test; the officer did not precede this request with another Miranda warning. Mr. Heinonen consented to the test but also blurted out that he had touched the shotgun.  A jury convicted Mr. Heinonen of possession of the shotgun by an ineligible person.

Mr. Heinonen challenged the admission of his statements at the house and at the jail.  The court of appeals said that just because the cops had handcuffed Mr. Heinonen that did not mean that he was in custody.  In fact, the court said that he was not in custody.  The court seems to say that if there is more than one person inside the house at the time of execution of the search warrant, the cops are authorized to restrain all of them regardless whether any of the occupants are causing a problem. So, since he was not in custody the police had no obligation to precede the demand to Mr. Heinonen to tell them where he was when they arrived with a Miranda warning.  Somehow this question about his location inside the  house when the cops arrived was also not an "interrogation" but just an "on-the-scene questioning" intended to "get a preliminary explanation of a confusing situation."  Really?  What was confusing other than to figure out who to tag with any contraband discovered during the search?  How better to resolve that confusion than to get Mr. Heinonen to them the cops where he was?

As to the question at the jail whether Mr. Heinonen would consent to a DNA test, this, too, is not an "interrogation" such that it triggers a Miranda warning.  The court insists that Mr. Heinonen "volunteered" the admission that he'd touched the shotgun so this slip of the tongue the court says is on Mr. Heinonen.

Court Ducks Question Whether Fifth Amendment Prohibits Testimony About a Defendant's Post Arrest, Pre-Miranda Silence During Squad Car Ride to Jail

State v. Lilienthal, Minn.S.Ct., 2/1/2017.  Without objection, during the state’s case in chief the prosecutor elicited testimony from an officer that following Mr. Lilienthal's arrest and placement in a locked squad car but before any Miranda warning he remained silent. SCOTUS has not addressed whether the Fifth Amendment prohibits evidence of a defendant’s post-arrest, pre Miranda silence. The federal circuits are evenly split.  Because there was no contemporaneous objection to the admission of this testimony, the appellate review standard is "plain error."  Because the federal circuits are split and SCOTUS hasn't said Justice Hudson could proclaim that any error in the admission of such evidence is not plain, under the “plain error” doctrine, and the analysis goes no further.

Mr. Lilienthal did timely object to the prosecutor’s two references to this silence during closing argument.  In keeping with its practice of punting whenever possible and eschewing guidance to the lower courts, the Justice says that even if these references were error they were harmless beyond a reasonable doubt.  End of discussion.

There are two end results, one neutral and the other not so much. The neutral end result is that the court consumes a lot of ones and zeros to produce an uninformative fourteen page opinion that simply doesn't answer the question that had prompted them to take the case in the first place.  It's really important, nonetheless, to keep in mind that because the court ducked the question, it remains unanswered whether evidence of post arrest, pre Miranda silence is admissible. 

The not good end result is that the Justice incorrectly suggests that the answer would be “yes”.  She says this based on a SCOTUS case from 2013, Salinas v. Texas, 133 S.Ct. 2174 (2013) in which Justice Alito said that the state may introduce a defendant’s silence to the one of many questions asked during a non-custodial interrogation. Alito said that a response of silence to a question is not the invocation of any Fifth Amendment privilege and so no error occurred in admitting testimony about that silence. 

Here, there was no interrogation, just a car ride in which Lilienthal kept his mouth shut because no one was talking to him.  Officers arrested Lilienthal somewhere up on the Iron Range and then drove him to jail in Duluth.  During the ride to jail, Lilienthal said nothing except to say that he didn’t need medical attention.  Other than that he wasn't asked any questions:

The record provides no evidence to indicate that Lilienthal ever made a statement in response to his arrest, except to deny that he needed medical attention. Deputy Feiro did not interrogate Lilienthal or read him a Miranda warning before he drove Lilienthal to the jail in St. Louis County.

This is a horrific opinion that some prosecutors and judges will surely misread and misapply.  Bring the popcorn because juries may soon be transfixed by squad videos supposedly indicative of guilt of arrested suspects riding silently in the back of the squad on the way to jail.

Compelling a Defendant to Provide Fingerprint In Order to Unlock Cell Phone Not A Fifth Amendment Violation

State v. Diamond, Minn.Ct.App., 1/17/2017.  Police arrested Mr. Diamond on suspicion of burglary.  Following his arrest, police obtained and executed a search warrant to seize Mr. Diamond's shoes and cell phone. Then, the police got another warrant to search the contents of the cell phone, only they were unable to unlock it.

So, the state got an order from the trial court compelling Mr. Diamond to provide his fingerprint in order to unlock the phone. Mr. Diamond complained that this violated his Fifth Amendment right not to incriminate himself.  Both the trial court and the court of appeals disagreed with that assertion.

Before the advent - or at least the ubiquitous proliferation - of cell phones, the U.S. Supreme Court said that the Fifth Amendment privilege applies to communications.  A defendant's communication must, itself, explicitly or implicitly, relate a factual assertion or disclose information.  Doe v. United States, 487 U.S. 201 (1988). Fingerprints, blood samples, voice exemplars, handwriting specimens may be obtained from a defendant against his will.  The court declines to make an exception for cell phones.  So, it may be more convenient to use a fingerprint to lock/unlock that cell phone but it won't keep the wolves at bay.

Confession is Voluntary and Evidence of Premeditation is Sufficient

State v. Cox, Minn.S.Ct., 8/24/2016.  Mr. Cox and his buddy Mr. Kurr went to rob Mr. Moran whom they believed was a drug dealer and thus likely to have a lot of both drugs and cash laying around his house.  When Mr. Moran failed to obey Mr. Cox's command to take his hands out of his pockets Mr. Cox first shot Mr. Moran in the thigh and then three times in the chest.  A jury convicted Mr. Cox of first degree premeditated murder, two counts of first degree intentional felony murder and first degree aggravated robbery.  On appeal Mr. Cox challenged the admissibility of his confession, and the sufficiency of premeditation to uphold the first degree premeditated murder conviction.

Mr. Cox said that his confession was not voluntary for three reasons:  the cops promised that in exchange for his confession they would look into his brother's death; the cops assured him that they could influence the county attorney's charging decision; and a "small town Scott County jury" would be more lenient if presented with a full confession.  Justice Dietzen rejects each of these assertions in turn.  The Justice says that because it was Mr. Cox who suggested that he would trade his confession for a promise to look into his brother's death his will was hardly overborne.  While it is improper for cops to suggest that they can influence prosecutors in favor of a defendant, all that the cops did here was to point out that the prosecutors would be "impressed" by his confession.  Finally, the crack abou "small town juries" being more lenient was "simply a prediction.

Two Justices, Chief Justice Gildea and Justice G. Barry Anderson, dissented from the majority's conclusion that the state had sufficiently proven premeditation.  Here's what Justice Dietzen says that the state proved that support a reasonable inference that Mr. Cox premeditated Mr. Moran's murder, which facts are inconsistent with a reasonable inference that his conduct was the result of a rash impulse:

The circumstances proved taken together are as follows. Cox planned the armed robbery of Moran’s home, including the potential murder of those he encountered, to accomplish his criminal objective. Cox practiced shooting the handgun, and brought a fully loaded handgun, extra bullets, and a shooting glove with him so that he was ready to murder the occupants of the home if necessary. Cox unlawfully entered Moran’s home, and told B.M. that he might kill everyone in the home if B.M. lied to him. When Moran arrived Cox stated that Moran is “the one I’m looking for.” Moran’s cell phone rang and Cox ordered Moran to show his hands. When Moran ignored Cox’s command to “put down the phone,” Cox shot Moran in the leg shattering his femur. Forty seconds elapsed between the first command and the first shot. Moran was wounded and unarmed. When Moran ignored the second command, Cox shot Moran in the chest causing him to stumble and fall. Cox shot Moran in the chest two more times.

The dissenters anguish that the majority has eviscerated the intentional murder statute:

The court’s holding in this case will make a premeditated murder out of virtually any armed robbery that results in a death. More generally, an affirmance here of the premeditated murder conviction may leave few circumstances that fit the statutory definition of intentional murder. Given the legislative decision to distinguish between an intentional murder and a premeditated murder, that cannot be the law. The circumstances as a whole in this case are not consistent only with the theory of a premeditated murder and inconsistent with all other rational theories. As a result, I would vacate the conviction for first-degree premeditated murder and remand this case to the district court for further proceedings.

No Error In Denying Motion to Suppress Statements and No Abuse of Discretion in Denying Defense Request For Instruction on Circumstantial Evidence

State v. Fox, Minn.S.Ct., 4/22/2015.  A jury found Mr. Fox guilty of first degree premeditated murder and first degree felony murder for the death of Lori Baker.  The trial court sentenced him to life imprisonment without possibility of release.

Police arrested Mr. Fox on a DOC hold.  As soon as the officers hit the interview room Mr. Fox volunteered that he thought they were there about Ms. Fox’s car.  He went on about that until the officers interrupted him and then read him his Miranda rights.  He and the officers then talked some more about the car, then about Mr. Fox’s use of Ms. Baker’s credit card, and then about where he’d been since Ms. Fox’s death.  When the officers finally told Mr. Fox, “Oh, by the way, Ms. Baker is dead and we think you did it.” Mr. Fox asked for a lawyer.  The interview ended.

Next day, Mr. Fox invited the cops back to talk some more.  The officers reminded Mr. Fox of his Miranda rights, and he agreed (again) to waive them.  Mr. Fox told the officers that he had tried to get representation from the public defender’s office in a different county but had been told that a public defender could not represent him until he was formally charged.  It turned out, however, that about two hours before this second interrogation two public defenders from the correct county had asked to meet with Mr. Fox but the jailers said, no.  Neither the officers nor Mr. Fox was aware of this at the time of this second interrogation.

Mr. Fox moved to suppress both statements.  Regarding the first interrogation, Mr. Fox said that he had not expressly waived his Miranda rights; rather he only said that he understood them and then everyone launched into the interview.  Justice Dietzen, for the entire court, said that Mr. Fox had voluntarily participated in the interview after the advisory and acknowledgment of his rights.  Second Mr. Fox said that having been arrested on that DOC hold he should have been told that the cops were really there to talk about the homicide before advising him of his rights and obtaining a waiver of those rights.  Way back in 1984 the court had warned the police to make sure that a defendant is informed of the crimes about which they want to ask questions before seeking a Miranda waiver.  State v. Beckman, 354 N.W.2d 432 (Minn. 1984).  Three years later, however, the U.S. Supreme Court took the air out of that warning by holding that the Constitution does not require that a criminal suspect know and understand every possible consequence of a Miranda warning.  Colorado v. Spring, 479 U.S. 564 (1987).  Justice Dietzen avoids the question whether Beckman is still good law by coming up with some sort of fact specific solution; the court said that Mr. Fox was not “totally unaware of the topics upon which he was going to be questioned” so his waiver was valid.

Regarding the second interrogation, Mr. Fox said that he had invoked his Fifth Amendment right to counsel at the end of the first interview and did not subsequently validly waive it.  He said that he was represented by a public defender at the time of the second interrogation; the police failed to tell him that the public defendant had arrived at the jail but had been rebuffed; and the other public defender’s office misinformed him that he was not entitled to a public defender until he had been formally charged.  On the first claim there was no evidence that the police knew that Mr. Fox was represented and thus no evidence of police misconduct or manipulation.  On the second claim the court concluded that the failure to inform Mr. Fox that public defenders had come to the jail to meet with him – assuming that the cops even knew this - did not deprive him of information essential to his ability to waive his Miranda rights.  On the third claim the court also concluded that any misunderstanding by Mr. Fox on his eligibility for a public defender did not invalidate  and that was good enough.

Mr. Fox asked for a “rational hypothesis” instruction on circumstantial evidence.  The court has long resisted such an instruction, saying that such an instruction was not “mandatory.”  State v. Turnipseed, 297 N.W.2d 308 (Minn. 1980).  The court again declines to require a circumstantial evidence instruction.

Evidence Sufficient to Uphold Conviction For Aiding First Degree Premeditated Murder

State v. McAllister, Minn.S.Ct., 4/8/2015.  Mr. McAllister and his two cousins brutally beat and kicked Michael McMillan.  During the beat down one of the three – apparently not Mr. McAllister, also shot Mr. McMillan.  After the three men left, one of them – again apparently not Mr. McAllister, returned and shot Mr. McMillan again.  He died from those injuries.  A jury convicted Mr. McAllister of aiding and abetting first degree premeditated murder and first degree felony murder.  The trial court sentenced Mr. McAllister to life in prison without possibility of release on the first degree premeditated murder verdict.

On appeal, Mr. McAllister complained that the state had presented insufficient evidence that he had intentionally aided another in committing the murder.  Justice Stras, for the entire court, said that Mr. McAllister’s complaint was wide of the mark.  The justice more or less concedes that the state’s proof that Mr. McAllister intentionally aided another in committing the murder was lacking, but then says, so what.  Under the complicity statute, Mr. McAllister is also liable for any other crime that was reasonably foreseeable as a probable consequence of committing or attempting to commit what the court decided was Mr. McAllister’s intended crime:  aggravated robbery.  It was readily apparent to the court that Mr. McAllister intended the aggravated robbery of Mr. McMillan:  he participated in the beat down during which one of his cousins shot Mr. McMillan.  Further, it was reasonably foreseeable that this beat down/shooting could result in the murder.

After Mr. McAllister’s arrest, officers interrogated him.  After a while he told the officers, “[n]o, ain’t no sense in talking no more man.  You may as well cuff me up, book me, whatever.  It’s just that simple.”  The cops did eventually take that statement as a sign to stop talking to Mr. McAllister.  The cops then let Mr. McAllister talk to one of his cousins, whom the officers knew had confessed.  This cousin told Mr. McAllister just that, whereupon, as hoped, Mr. McAllister resumed the interrogation.  The trial court denied his motion to suppress everything he said after the “cuff me” remark, concluding that this was not an unambiguous invocation of his right to remain silent.  Justice Stras lets that go, saying that even if there was a mistake there was overwhelming evidence of guilt so that any error was harmless.

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. 

Although Portions of State’s Grand Jury Presentation Were “Problematic” Dismissal of Indictment was Not Required.

State v. Morrow, Minn.S.Ct., 8/7/2013.  A grand jury indicted Mr. Morrow with one count of first degree premeditated murder, two counts of attempted first degree premeditated murder and seven other counts.  A jury convicted him on everything and the court imposed a life sentence without possibility of parole on the top count.  Mr. Morrow raised a number of issues on appeal, including the denial of his motions to dismiss the indictment on various grounds, and to suppress his statement to the police.  Justice G. Barry Anderson – Wright & Lillehaug not participating - affirmed the conviction and sentence.

Mr. Morrow, through counsel, notified the prosecutor that he wanted to testify before the grand jury.  The attorneys then spent some time negotiating whether that would happen; it didn’t and instead, the grand jury heard an officer’s summary of Mr. Morrow’s statement to the cops.  Mr. Morrow complained that what the cop told the grand jurors misrepresented what he’d said to the point of more or less eviscerating his claim of self defense.   Mr. Morrow also complained that the prosecutor failed to present exculpatory evidence and failed properly to respond to questions from the grand jurors.  The court summarily rejects Mr. Morrow’s clam that he had a right to testify before the grand jury; rather, the decision to call a defendant as a witness before the grand jury is a discretionary decision that was not abused in this case.

Mr. Morrow also claimed that his testimony would have been exculpatory but the court was not presented with an offer of proof of what that evidence would have looked like.  On his claim that the officer misrepresented his statement to the grand jury the court concludes that even though there were some inaccuracies in it, it was close enough for government work.  The court does describe portions of the officer’s summary to the grand jury of Mr. Morrow’s statement as “problematic,” but not so much to overcome what the court described as a “heavy burden” that has to be satisfied to dismiss an indictment.

At the beginning of Mr. Morrow’s custodial interrogation he asked the officers if could talk to his Dad if he cooperated with them “one hundred percent.”  The officers told him that if he told them the truth and if they believed him then he would be allowed to make the call to his Dad.  Mr. Morrow argued that this made his statement involuntary because the officers exploited Mr. Morrow’s special relationship with his father.  The test whether a defendant’s statement is voluntary is whether that defendant’s will was overborne at the time of his confession, determined under a “totality of the circumstances” analysis.  State v. Zabawa, 787 N.W.2d 177 (Minn. 2010).  The court affirms the trial court’s conclusion that the statement had been voluntarily made.

The trial court permitted the state to introduce a photograph of the deceased, who was a grown man at the time of his death, as a child.  The court upheld the introduction of this photograph – “spark of life” – concluding that it was not used to invoke undue sympathy or to inflame the jury’s passions.  See State v. Scales, 518 N.W.2d 587 (Minn. 1994). 

A Defendant’s Silence in Response to Police Letter Asking For Statement is Not Protected Under Compulsory Testimony Provision of Fifth Amendment

State v. Borg, Minn.S.Ct., 9/21/2011.  This comes up from the court of appeals, about which I wrote here.  I missed this back in November and would have continued to miss it were it not the subject of yet another opinion today.  Before the state charged Mr. Borg with a sex offense, the lead investigator sent him a letter in which he referred to a previous phone call with Mr. Borg during which Mr. Borg said he had hired an attorney to represent him, and in which he also asked Mr. Borg to have his attorney contact him “to arrange an interview appointment.”  There was no proof that Mr. Borg actually got the letter.

By the time everybody gathered in the courtroom for trial the facts had changed.  The state told the trial court, without objection from the defense, that the investigator had first sent a letter to Mr. Borg and then called him on the phone, both times asking if Mr. Borg would be willing to make a statement.  Mr. Borg said, no.  The trial court ruled that the investigator could testify in the state’s case in chief that he sent a letter to Mr. Borg to which he received no response.  However, the investigator could not testify about the telephone call because Mr. Borg said during it that he had an attorney.

The court of appeals reversed the trial court on these rulings.  Justice G. Barry Anderson, writing for a four person majority, reversed the court of appeals, concluding that there was no compelled testimony – in this case, silence, adopting the reasoning of a concurrent opinion by Justice Stevens in a supreme court opinion, Jenkins v. Anderson, 447 U.S. 231 (1980):

When the government does nothing to compel a person who is not in custody to speak or to remain silent, however, then the voluntary decision to do one or the other raises no Fifth Amendment issue. 447 U.S. at 241, 100 S.Ct. 2124 (Stevens, J., concurring). We hold that if a defendant's silence is not in response to a choice compelled by the government to speak or remain silent, then testimony about the defendant's silence presents “a routine evidentiary question that turns on the probative significance of that evidence.”

Justice Meyer dissented, saying that the state improperly commented on Mr. Borg’s s counseled silence in violation of both his Fifth Amendment and Due Process rights.  Justice Page joined her dissent.  Justice Paul Anderson joined her dissent on the Fifth Amendment section only.

Assumed Error in Admitting Defendant’s Scales Interrogation Does Not Entitle Defendant to New Trial.

State v. Davis, Minn.S.Ct., 9/19/2012.  A jury convicted Mr. Davis of aiding and abetting the first degree felony murder of Armando Calix.  This was apparently a drug robbery that ended up with a dead man on the floor of his apartment.  A witness placed Mr. Davis and a Mr. Dorman at the location where Mr. Calix was shot just minutes before the shooting.  Shortly after the shooting another witness met up with Davis and Dorman and eventually went from Minneapolis to St. Paul with Davis.  David told this witness the details of the robbery and shooting of Mr. Calix. 

Meantime, both before and after the shooting, Mr. Davis was chatting up an inmate at the jail, during which Davis made several incriminating statements about the robbery and murder of Mr. Calix.  This got the police suspicious.  Davis got himself arrested for an unrelated assault.  While in jail on that assault charge an officer came to see him about it.  The officer gave Davis a Miranda warning and Davis agreed to talk about the assault.  However, when the officer asked Davis where he was on the night of the Calix shooting it suddenly dawned on Davis that the officer really, or additionally, wanted to talk about the Calix shooting, not the assault.  Davis told the officer that he was at home in St. Paul that night and then pretty much shut down, pleading with the officer just to “send me to jail” on the assault, that he didn’t know anything.  The officer persisted in questioning Davis about the Calix shooting, all the while Davis is saying, take me to jail.  He also said that he wanted a lawyer.

The officer then let Davis stew in the interrogation room for a half hour or longer, all the while Davis asking the officer if he could go home if he told what he knew.  The officer punted the question.  The officer then read Davis the Miranda advisory again and Davis sang.  He admitted being in the apartment where Calix was shot but insisted that he was only “in the wrong place at the wrong time.”  Davis said he thought he was just tagging along with Dorman to get some weed.  He said that all of a sudden he saw Dorman pull out a gun at which point Davis ran and hid in a closet.

Needless to say, Mr. Davis moved to suppress this interrogation.  The trial court denied the motion.  Chief Justice Gildea assumed without deciding: (1) that the officer violated Davis’s right to remain silent by continuing to question him after Davis first said he didn’t want to talk, and (2) that the trial court erred in admitting the statement.  No heavy lifting here.  With these questions out of the way all that’s left is the more amorphous question whether these alleged errors were harmless beyond a reasonable doubt.

And of course, they’re not.  The chief justice broke down the statement into the admissible part and the inadmissible part.  During the admissible part Mr. Davis repeatedly lied to the police – the court’s words not mine.  A jury hearing this part would surely think less of Mr. Davis’s credibility, but because this part was admissible there can’t be any harm.  During the inadmissible part all that Davis did was – wait – put himself in the murder room “in the wrong place at the wrong time.”  How is this not harmful?

Moving on.  Davis complained that the trial court should not have allowed a witness to state that when someone cooperated with the police he puts his life at risk and might end up killed.  There was no objection to this testimony so it’s plain error time.  The state conceded that this was plain error because the trial court did not provide a cautionary instruction to the jury about what to do with it. (Check out State v. Harris, 521 N.W.2d 348 (Minn. 1994) to see what should be said.)   Again, no heavy lifting.  That left only the (again) amorphous question whether this plain error affected Mr. Davis’s substantial rights.  Which it didn’t. 

Mr. Davis made a couple of other complaints on appeal, one which the court rejected having to do with some hearsay statements that the defense wanted admitted, and another having to do with an adverse inference instruction that the trial court gave without Mr. Davis’s consent.  See State v. Gomez, 721 N.W.2d 871 (Minn. 2006).  This instruction advises the jury not to draw any adverse inference from a defendant’s election not to testify.  Again, no objection so it’s plain error time once more.  The court agrees that giving this instruction without Mr. Davis’s consent was plain error, but once again, the error did not affect his substantial rights.

Defendant Reinitiated Police Questioning After Invoking Right to Counsel; Subsequent Admissions Admissible

State v. Ortega, Sr.,, Minn.S.Ct., 4/18/2012.  A jury convicted Mr. Ortega of aiding and abetting first degree premeditated murder.  What began as a neighborhood beer party ended in a knife fight.

Police officers arrested Mr. Ortega.  Two BCA agents went over to interrogate him, but even before the agents could read a Miranda warning to him, Mr. Ortega said, “[w]ell then I’m not gonna say nothin’ I just want to have an attorney present if you’re gonna question me.”  The agents left.

The local deputy investigator, Investigator Gunderson, however, came back later that day and took another run at Mr. Ortega.  The investigator said at the suppression hearing that all he’d done was go into the interview room where Mr. Ortega was being held in order to talk to another deputy about taking Mr. Ortega to the jail.  The next he knew, Mr. Ortega was showing Gunderson his head injuries and one thing lead to another and Mr. Ortega confessed.  Mr. Ortega, on the other hand, said that Gunderson had briefly come into the interview room while the BCA agents were there and then left.  Mr. Ortega said that the agents then threatened him and then they left.  Gunderson then returned and one thing lead to another and he confessed.

Even so, Mr.Ortega would not tell Gunderson the whereabouts of the murder weapon.  When Gunderson pressed him about it, Mr. Ortega said he’d have to talk to an attorney about that first.  Gunderson changed the subject and kept on interrogating Mr. Ortega about other aspects of the murder.

Mr. Ortega complained that it was the officers who re initiated questioning of him after he invoked his right to counsel at the beginning of the interrogation.  The court concluded, unfortunately for Mr. Ortega, on the basis of two statements that Mr. Ortega made that it was he who re initiated questioning.  First, he asked Gunderson to look at his head wound.  Now, true enough, this is more like a question about the custodial relationship – the question suggests that Mr. Ortega believes that he needs a doctor – that is not re initiating of questioning.  State v. Staats, 658 N.W.2d 207 (Minn 2003).  But, forget about that question because the second thing that Mr. Ortega said was to ask to speak to Gunderson.  That looks for all the world like a “willingness and desire for a generalized discussion about the investigation.”  Oregon v. Bradshaw, 462 U.S. 1039 (1983) (plurality opinion).  That’s Mr. Ortega asking for a redo of the interrogation.  Because Mr. Ortega conceded that he validly waived his right to counsel his admissions that followed were properly presented to the jury.

Mr. Ortega also complained that he again invoked counsel when he said he needed to speak to a lawyer before disclosing the whereabouts of the knife.  The court dispenses with this claim in short order, concluding that the continuation of the interrogation (a) sought only to clarify just what kind of invocation Mr. Ortega was making, and (b) didn’t talk about the knife anyway.

Mr. Ortega’s defense at trial was self defense.  During jury selection, the prosecutor asked potential jurors, “[d]o you think there is anything more valuable than human life?”  Mr. Ortega objected, saying that it was not a question designed to elicit useful information on which to exercise a peremptory challenge, but was a back handed slam at his self defense claim.  That went no where, and eventually both sides were asking the question. 

So, the supreme court ducks the issue whether this was poor form or not, concluding that even if it were poor form the questioning did not for three reasons affect the outcome of the case.  First, in a self defense case, the question may even have helped Mr. Ortega.  Second, the trial court told the jury what the elements of the offenses were, including self defense.  Third, the prosecutor never argued that the jury should reject Mr. Ortega’s self defense claim because there were no circumstances that justified the taking of a life. 

A Defendant’s Post Arrest, Pre Miranda Silence to Accusation of Criminal Conduct, Not Prompted by the Police, Is Admissible in State’s Case in Chief

State v. Johnson, Minn.Ct.App., 1/30/2012.  Four guys, one of whom was alleged to be Mr. Johnson, robbed B.A..  B.A. reported this to a (sort of) nearby police officer who, with the aid of other officers stopped the guys.  B.A. asked Mr. Johnson, “Why did you beat me?  Why did you take my things?”  Mr. Johnson did not respond to this inquiry.

The trial court joined Mr. Johnson’s trial with that of a codefendant, Mr. Maull.  Mr. Johnson complained on appeal that this was a mistake.  The court appeals upheld the joinder, concluding that four of the factors to be considered – nature of offense charged, potential prejudice to Mr. Johnson, and interests of justice – favored joinder.  The remaining factor - the impact on B.A. –neither favored nor disfavored joinder.

Mr. Johnson also complained that his speedy trial rights were violated.  Mr. Johnson could not really articulate what prejudice to his defense resulted from the delay in commencing his trial and so the appellate court rejected his speed trial claim.

The appellate court also concludes that Mr. Johnson’s post arrest, pre Miranda silence can be introduced in the state’s case, provided that the police did nothing to produce that silence.  The six federal courts of appeals that have ruled on this question have split fifty-fifty.  Unfortunately the 8th circuit sides with admission of this silence and that’s good enough for the court of appeals.