Court Rejects Batson Challenge Because Defense Could Not Establish Prima Facie Showing That Peremptory Strike Was Racially Motivated

State v. Wilson, Minn.S.Ct., 8/16, 2017.  A jury convicted Mr. Wilson of first degree premeditated murder on an accomplice liability theory for his involvement of Anthony Fairbanks. One of his codefendants had already been tried and convicted, about which you can read here.  On appeal Mr. Wilson raised a Batson issue and an evidentiary issue.

The court yet again rejects a Batson juror challenge.  Mr. Wilson did not survive the first requirement of establishing a valid Batson challenge, that the state had exercised a peremptory challenge against a prospective juror - identified only as "Juror 29" - on the basis of race. Here's the gist of what Juror 29 had to say during voir dire:

1. Although married to a prosecutor, Juror 29 said that he and his spouse "have their own views and that they debate about the law and the judicial system.  He said that his spouse had been involved in a trial of a Minneapolis police officer two weeks earlier and that he had been disappointed in the outcome.
2. Three years earlier a St. Paul officer pulled a gun on Juror 29 as he was sitting in his parked car preparing for a job interview. When Juror 29 explained to the officer what he was doing the officer apologized and went on his way.
3. Juror 29 said in his questionnaire that in theory the criminal justice system works fine but "not so much in practice."  He elaborated on this during questioning that “I think maybe we incarcerate more people than any other country in the world, disproportionate amount of those are African American.” Juror 29 further stated that, as a juror, “for the system to work well, it would be incumbent upon me to be . . . non-partial, not biased, to have an open mind about the evidence, both sides of the evidence and to . . . withhold any sort of opinion I had until all the evidence [has] kind of been submitted and heard.”  
4. Juror 29 stated that he did not believe that his views on the disproportionate incarceration rate Black me would not impact how he viewed a criminal case if he wee on a jury.
5. Juror 29 said that it was view that society was largely divided based on race and that it would be a "stretch to think that 12 people would be completely impartial going into a jury trial."

Justice G. Barry Anderson affirms the trial court's conclusion that Mr. Wilson had not shown that the state's peremptory challenge to Juror 29 had been racially motivated.  The Justice emphasized the "great discretion" afforded trial judges in making these determinations, and that just as it was not an abuse of discretion for the trial judge here to rejected the challenge neither would it have been an abuse of discretion had the trial court come to the opposite conclusion:

Taking these facts into consideration, and given the low bar for Wilson to establish a prima facie showing of an inference of discrimination, it likely would not have been error for the district court to conclude that Wilson had established a prima facie showing of discrimination. But neither was it error for the district court to conclude that Wilson failed to make a prima facie showing of discrimination. We must give “great deference” to the district court’s determination...

Police found the murder weapon in a storage locker rented to an alleged accomplice.  Mr. Wilson wanted to argue to the jury that drug dealers, which the accomplice apparently was, knew to keep their stash separate from their weapons so that's why the gun was in that storage locker.  Drug dealers knew this, the defense wanted to argue, because they also knew that the penalties for drug crimes where guns were involved were significantly higher.  The problem for Mr. Wilson was that he had no evidence to present in support of these assertions so when the state moved to exclude any further talk about this the trial court agreed.  The state said, and the trial judge agreed, that Mr. Wilson had no evidence that either of the accomplices to Mr. Fairbanks' death knew about the consequences that would result from keeping drugs and guns in the same place. Justice G. Barry Anderson agrees with the trial court's ruling, concluding that there was no abuse of discretion in the ruling because such evidence was irrelevant.

Separate Appellate Standard of Review For Circumstantial Evidence Cases Survives Challenge

State v. Harris., Minn.S.Ct., 5/24/2017.  When Minnesota appellate courts review a conviction that is based on circumstantial evidence - in whole or in part - it is one of a handful of states that applies a different standard of review than for convictions based upon direct evidence. Under this separate standard of review the appellate court identifies "the circumstances proved and independently consider the reasonable inferences that can be drawn from those circumstances, when viewed as a whole. State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010."  Those inferences "as a whole must be consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.  State v. Fox, 868 N.W.2d 206, 223 (Minn. 2015).  

A jury convicted Mr. Harris of being in possession of a firearm even though he's not supposed to be doing that.  In an unpublished opinion the court of appeals reversed that conviction, saying that the state had failed to present sufficient evidence to prove it.  The state asked the Supreme Court to review the case and to abandon this separate standard of review.  In a 5-2 opinion, Justice G. Barry Anderson declines that invitation, much to the annoyance of Justices Lillehaug and McKeig who dissented:

When we review convictions, we apply one standard for convictions based on direct evidence, and we apply another standard for convictions based on circumstantial evidence. And we have avoided announcing a definitive standard for review of convictions based on both kinds of evidence.

This confusing dichotomy between how we expect juries to decide cases and how we review their decisions has existed for almost 90 years. Nine decades of confusion is long enough. Evidence is evidence. Minnesota should join the appellate courts of the United States, 41 other states, and the District of Columbia in adopting a unified standard of review.

Oh, and the facts?  That's what's got the state really, really pissed off:

The circumstances proved that implicate Harris include: (1) on the night of March 4, 2014, Harris was driving a car, J.A. was sitting in the front passenger seat, and K.E. was sitting in the rear seat; (2) there was an active warrant for J.A.’s arrest; (3) after securing backup assistance, the police officer assigned to execute the arrest warrant activated the lights and siren on his vehicle; (4) Harris continued driving between 30 and 35 miles per hour for about three blocks after the officer activated his lights and siren; (5) the officer saw movement in the car; (6) when the police officer searched the car, he noticed that the headlining had been pulled down near the sunroof, to the right and slightly behind the driver’s seat, creating a small void; (7) the officer saw an object, which he clearly recognized as the butt end of a silver handgun, wedged in this void between the headlining and roof of the car; (8) a mixture of male and female DNA from five or more people was recovered from the firearm; and (9) subsequent DNA testing concluded that none of the occupants of the vehicle could be excluded as contributors to the DNA mixture found on the firearm, but 75.7% of the general population could be.

The state said that if these facts weren't enough to uphold the jury's conviction then the Court was "eviscerating" the construct of joint-constructive possession.  Justice Anderson seems unfazed by this plea, basically throwing out some homilies in response:

We recognize that courts must be cautious in addressing the sufficiency of evidence in a joint constructive possession case. Constructive possession is a legal concept that permits an inference that the defendant possessed an item found in a place in which others had access when “there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it.” Florine, 226 N.W.2d at 611. In addition, two or more people can constructively possess an item jointly. Lee, 683 N.W.2d at 316 n.7. In a joint constructive possession case, the circumstances proved need not support a reasonable inference that the defendant actually possessed the item. Instead, the circumstances proved must support a reasonable inference that the defendant, singly or jointly, was at the time consciously exercising dominion and control over the item. The circumstances proved also would have to be inconsistent with a reasonable inference that the defendant, singly or jointly, was not consciously exercising dominion and control over the item at the time in question.

 Even more infuriating to the state, Mr. Harris actually conceded in the court of appeals that "reasonable inferences to be drawn from the circumstances proved [were] that [he] knowingly possessed the gun before it was hidden in the liner."  Again, the Justice sweeps this aside:

Because we conclude that, when viewed as a whole, there are rational hypotheses other than guilt consistent with the circumstances proved, we need not address the impact, if any, of Harris’s attempt to reframe his earlier concession.

Court Rejects Challenges To Grand Jury Procedures, Evidentiary Rulings & Jury Instructions in Affirming Murder I Conviction

State v. Guzman, Minn.S.Ct., 4/12/2017.  A jury convicted Mr. Guzman of first degree premeditated murder.  The trial court sentenced him to life with possibility of release.  

The state's initial Complaint charged Mr. Guzman with second degree intentional murder.  At his first appearance the trial judge asked the prosecutor to notify the court and defense counsel if there was going to be a presentation to the grand jury.  The prosecutor apparently didn't say anything in response, but seventeen days later the state convened a grand jury which eventually returned the murder 1 indictment.  Mr. Guzman said that the indictment was untimely, citing to Rule 8.02, subd. 2:

If the complaint charges a homicide, and the prosecuting attorney notifies the court that the case will be presented to the grand jury, or if the offense is punishable by life imprisonment, the defendant cannot enter a plea at the Rule 8 hearing.

Presentation of the case to the grand jury must commence within 14 days from the date of defendant’s appearance in the court under this rule, and an indictment or report of no indictment must be returned within a reasonable time.

Justice G. Barry Anderson pointed to the court's opinion last year, State v. Vang, which rejected this very argument.

Mr. Guzman also wanted the entire grand jury transcript, not just the testimony of trial witnesses.  The court talked about this just the other week, State v. Loving, and laid out what the defense has to show in order to get the non-testimonial portion of grand jury proceedings.  The defense must show good cause to acquire the non-testimonial portion; the trial court found, and Justice Anderson agreed, that this burden had not been met.

Mr. Guzman defended in part by saying that a Mr. Hector was a third party perpetrator.  Mr. Guzman wanted to introduce "prior bad acts" of Mr. Hector, some of which the court allowed but most of which it excluded on evidentiary grounds:

Here, the district court allowed appellant to present evidence that at the time of Rufino’s death, Hector had consumed alcohol and possessed a firearm.11 The court, however, excluded the following reverse-Spreigl evidence as irrelevant: testimony that during the spring 2014 robbery Hector consumed alcohol and possessed a firearm and testimony about an alleged dispute between Hector and his neighbor that involved a gun. The court also excluded evidence that Hector and Rufino were gang members, concluding that the evidence was “innately prejudicial.” Finally, the district court excluded testimony regarding an alleged confrontation between Hector and J.R., finding that if it was offered for the truth of the matter asserted, it was hearsay, and if it was offered for impeachment, Hector did not have an opportunity to admit or deny it. 

The trial court allowed the state to introduce recordings of jail calls between Mr. Guzman and his girlfriend, some of which occurred while he was in jail on something else.  While the court didn't like it that the state told the jury how it was that it had these recordings it said that any error was harmless.

Once again, the whole business of "expansive liability" language in the jury instruction on accomplice liability came up:

The law further provides that a defendant who intentionally aids and abets another person in the commission of a crime is not only guilty of the intended crime but also any other crime which was a reasonably foreseeable and probable consequence of trying to commit the intended crime.

Appellant objected to the italicized language, which for purposes of this opinion we will call “the expansive-liability language.” According to appellant, the expansive-liability language is appropriate only when there is evidence that the defendant intentionally aided and abetted an accomplice in the commission of a crime, like robbery, and the accomplice commits another crime that was reasonably foreseeable to the defendant, like murder. 

The court says that if there were any error it was harmless.

On These Facts, A Twenty-One Month Delay Between Charge and Arrest Did Not Violate Sixth Amendment Speedy Trial Right

State v. Osorio, Minn.S.Ct., 3/22/2017.  Mr. Osorio complained that a twenty-one month delay between the date that the state charged him with a crime and the date of his arrest violated his Sixth Amendment right to a speedy trial.  The trial court agreed and threw the case out. The court of appeals reversed the trial court and now Justice G. Barry Anderson affirms the court of appeals, over the dissents of Justices Hudson and Strass.  With two members of the court - Chutich and McKeig, not participating, it's a 3-2 opinion.

Justice G. Barry Anderson again awards the length of delay factor to Mr. Osorio.  The blame for the delay also goes to the State:

Thus, while Osorio may have had an obligation or responsibility to respond to the summons because it was a valid court order, he did not have a constitutional duty to bring himself to trial.

The State, on the other hand, does have a responsibility to diligently pursue and prosecute the defendant. See Doggett, 505 U.S. at 652-53. In this case, the State was clearly aware of Osorio’s whereabouts and could have easily followed up on his location by contacting law enforcement officials in California. The State’s complete failure to take any steps to execute the warrant against Osorio is the reason for the delay in this case. 

But, the Justice concludes (somehow) that the failure to take steps to get Mr. Osorio back to Minnesota wasn't intentional so it gets only a mild slap on this factor.

On the third factor, assertion of the speedy trial right, the court does reject the notion that there was a presumption that Mr. Osorio received the summons and complaint because the same were not returned. Instead, the court looks to the "totality of the circumstances" to conclude that he got those papers and then sat back to await further developments.  So, this factor goes against Mr. Osorio.

Finally, Mr. Osorio sort of loses the prejudice factor on the facts of the case.

Although the State “has not, and probably could not have, affirmatively proved that the delay left [the defendant’s] ability to defend himself unimpaired,” Doggett, 505 U.S. 658 n.4, Osorio’s acquiescence to the delay reduces the weight that we afford his claim of generalized prejudice. As a result, the prejudice factor does not provide significant support for Osorio’s claim. 

Mr. Osoria had alleged that some recordings had been destroyed but he was unable to show when that destruction occurred.  The record did not establish that they were lost after the State charged Mr. Osorio, so he could not really show prejudice as a result of that destruction.

Justices Hudson and Stras thought that the third and fourth factors weighed in Mr. Osorio's favor and that his Sixth Amendment speedy trial right was, indeed, violate.

A Felony Deemed To Be A Misdemeanor Cannot Be Expunged

State v. S.A.M., Minn.S.Ct., 3/15/2017.  Twelve years ago S.A.M. pled guilty to a second degree burglary.  He received a stay of imposition of sentence, which became a misdemeanor a mere three years later upon release from probation.  In 2015 S.A.M. applied for an expungement; he stated that  he'd obtained a bachelor's degree, purchased a home, stopped drinking, was raising his eight year old son and stopped hanging out with his co-defendants. 

S.A.M. made his application under the provision of the expungement statute that allows a person to request the same when the person:

was convicted of or received a stayed sentence for a petty misdemeanor or misdemeanor and has not been convicted of a new crime for at least two years since discharge of the sentence for the crime.

Everyone screamed bloody murder:  the county attorney, the city attorney (for some reason), the BCA, the police all objected.  Not on the merits of the application.  No, they all said, and the trial court agreed, that S.A.M. had not been convicted of a misdemeanor notwithstanding Minn.Stat. 609.13,  subd. 1(2).

Justice G. Barry Anderson agreed with the trial court and all those state agencies in a 4-3 opinion.  Justices Lillehaug, Chutich and McKeig dissented:

By shutting the door to expungement for people like S.A.M., the court reduces opportunities for rehabilitated offenders to become productive members of society. Read properly, the law does not require this harsh result. I hope that the Legislature will clarify the expungement statute to reopen this door. Clarification would further what the Legislature has declared to be the state’s official policy: “to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the resumption of the responsibilities of citizenship.” Minn. Stat. § 364.01 (2016).

The majority decided that the "was convicted" language referred only to the initial sentence and not the final outcome.  In coming to this conclusion the court continues to ascribe way too much faith in the ability of the legislature - comprised of part timers who haven't seen a pay raise in twentysome years - to draft (and enact) statutes on the same subject consistently.  Case in point is State v. Franklin, 861 N.W.2d 67 (Minn. 2015).  There the court was asked to determine whether a felony conviction that had been reduced to a misdemeanor counts in determining whether an offender “has five or more prior felony convictions” under the career offender statute.  Only because the legislature used the present tense – “has -  did the court say, no, it doesn’t count.  Presumably, had the legislature said “had previously been convicted of five or more felonies” then it would have counted.  It is the height of hypocrisy for a court that is constantly admitting to its own sloppy draftsmanship in past decisions to insist rigidly on legislative exactitude in its drafting practices. 

So, S.A.M. has to live with his misdemeanor being public.

Fourth Post Conviction Petition Claims Untimely Under Statute's Limitations Restrictions

Hooper v. State, Minn.S.Ct., 12/14/2016.  This is Mr. Hooper's fourth post conviction petition.  You can read about the third one here.  This go round he claims to have a recanting witness that entitled him to a new trial.  He has to rely upon one of the statutory exceptions to the two year limitations period; he picks "interests of justice" and "newly discovered evidence".  The district court denied the petition both as untimely under the statute and as barred under the Knaffla rule.

Justice G. Barry Anderson agrees that the petition's claims are untimely under the statute and not within the two exceptions that Mr. Hooper utilized.  The Justice goes on to address one of the Knaffla exceptions - also "interests of justice" - and concludes that Mr. Hooper has not met that exception either because his claim does not have "substantive merit".  This is all window dressing, however, as the court continues to duck the question whether the Knaffla exceptions survived the recodification of the post conviction statute.

Because Predatory Offender Registration As A Result of a Conviction is a "Collateral Consequence" Failure to Advise Regarding It is Not Ineffective Assistance of Counsel

Taylor v. State, Minn.S.Ct., 12/7/2016.  Mr. Taylor said that his trial counsel had provided ineffective assistance of counsel by not advising him that his conviction for a felony domestic assault would trigger a requirement that he had to register under the predatory offender statute.  He said that just as immigration consequences are not "collateral" neither is registration.  Justice G. Barry Anderson rejects this notion:

The statutory duty to register as a predatory offender is a collateral consequence of a guilty plea. Because a criminal defendant need not be warned of a collateral consequence before entering a guilty plea, the defense attorney’s failure to advise the appellant of the duty to register as a predatory offender did not violate the appellant’s right to effective assistance of counsel under the United States and Minnesota Constitutions.

Not much more to say.

 

Use of Multi-County Grand Jury Procedure Survives State Constitutional Challenge

State v. Fitch, Minn.S.Ct., 8/24/2016.  Mr. Fitch shot and killed a police officer in Dakota County, then shortly thereafter got into a shoot out with officers in Ramsey County, injuring three of those officers before being shot himself.  The state convened a multi-county grand jury under the provisions of Minn.Stat. 628.41, subd. 2.  That grand jury then returned an indictment which charged Mr. Fitch with the homicide in Dakota County, and with multiple offenses in Ramsey County:  three counts of attempted murder in Ramsey County and possession of a firearm by an ineligible person.  

The statute authorized either a Dakota or Ramsey judge to convene this multi-county grand jury.  Whether by coin flip or otherwise, a Dakota judge convened one of these multi-county grand juries and designated the Dakota County Attorney's Office to attend to the care and feeding of this grand jury.   The order that impaneled the grand jury also designated Dakota County as the venue for any proceedings in the event of an indictment.  This venue designation put Mr. Fitch's prosecution on a collision course with a provision of the state constitution, Article 1, Section 6, which says that Mr. Fitch "enjoys" the right to a "public trial by an impartial jury of the county or district wherein the crime shall have been committed..."

Mr. Fitch invited this collision by attacking the indictment in two ways.  He moved to dismiss the indictment, saying that regardless of what the statute said the district court was constitutionally required to sever the Ramsey County offenses from the Dakota homicide offense because of the jury locale requirement of the aforementioned Article 1, Section 6 of the state constitution . This was an apparent if not explicit reference to the offenses that happened in Ramsey County.  Mr. Fitch also moved to sever the Dakota homicide from the Ramsey County offenses under Rule 17.03, subd 3; he relied upon two provisions of that rule:  that the Ramsey County offenses were not related to the Dakota homicide, or even if related joining the offenses for trial was too prejudicial.  

At the same time, Mr. Fitch moved to change venue because, he said, all the pretrial publicity prevented him from getting a fair trial. The trial judge took up the venue change motion first and granted it, packing everyone off to Stearns County for trial.  The trial court then took up Mr. Fitch's constitutional challenges and denied them. Then the trial court then denied the motion to sever the Ramsey County charges.  A Stearns County jury convicted Mr. Fitch of all of the charges.

Mr. Fitch appealed the rulings on his constitutional challenge and on his Rule 17.03 severance request.  The court first took up the constitutional challenge.

Justice G. Barry Anderson acknowledges that Mr. Fitch had a right to be tried by a jury from a particular county or district; the constitutional provision is about the jury pool and not about the location of trial.  With that understanding it's easy to reject any claim that Mr. Fitch had a right to either a judge or prosecuting authority from a particular county or district.  Rather, Mr. Fitch's rights under Article 1, Section 6 cannot be violated until a judge impanels a jury from a county other than the one in which the offense occurred to adjudicate the case against him.  

Addressing the right to be tried by a jury from a particular county or district, Justice Anderson says that past opinions establish that even this right is subject to at least two exceptions:  this right can be overcome where it would be difficult to identify the county or district in which the offense occurred, and where an impartial jury cannot be drawn from the county or district in which the alleged crime occurred.  The court does say that in most cases in which a multi-county grand jury returns an indictment, the district court should designate venue based on where the alleged offense occurred.  So, although the statute gives the trial judge discretion in designating the venue of charges returned by a multi-county grand jury the state constitution does impose restraints on that discretion.

So, the court is creeping perilously closer and closer to having to answer the constitutional question:  did keeping the Ramsey County charges in Dakota County violate Mr. Fitch's right to be tried by a jury of the county or district in which the crimes occurred?  The state said no, for two reasons:  because it avoids serial prosecutions, and because it would be just too traumatic and, frankly, inconvenient, for all of its witnesses to have to testify at two different trials.  Justice Anderson found these justifications for trampling on Mr. Fitch's state constitutional rights just a bit too easy and more problematic, amorphous.  The court said that under the state's rule there would be "no limiting principle for when witness convenience outweighs a defendant's rights under Article 1, Section 6 to trial by a jury of the county or district in which the crime was committed."  

By rejecting the state's only reasons to try both sets of charges in Dakota County Justice Anderson is left with no justification to deny Mr. Fitch his state constitutional right to a trial by a jury of the county or district in which the crime was committed.  Now finally face to face with the state constitutional question the court does what it is wont to do and punts it.

To do that things get a little fuzzy.  This is because, remember, at the same time that Mr. Fitch moved to dismiss the indictment on state constitutional grounds he also moved to change venue because of publicity.  This was just the out that the court was looking for.  If Mr. Fitch could not get a fair trial in "the greater Twin Cities metropolitan area" - which is what he said - then what did it matter whether he was entitled to trial in Ramsey County before a Ramsey County jury on the Ramsey County charges?  

Justice Anderson takes a breath at this point and rather sheepishly concedes in a lengthy footnote that Mr. Fitch had been asking the Dakota County court only that the homicide venue, which was initially and properly located in Dakota County, be moved out of Dakota County; while at the same time he was asking that the Ramsey charges be sent packing back to St. Paul, not as a venue change because of pretrial publicity from a properly venued action but as a recognition that under the state constitution Dakota County had no business trying the Ramsey charges in the first place.  The court also accepted Mr. Fitch's assertions to them that he had not intended to waive his right to have the Ramsey County charges tried by a Ramsey County jury.

Despite all this, Justice Anderson fudges these concessions by then noting that by requesting a change of venue Mr. Fitch was admitting that he could not receive an impartial jury trial in either county.  An "impartial" jury is one of the safeguards that Article 1, Second 6 protects.  This lets the court off the hook because it could now pronounce that because of all that publicity about which Mr. Fitch so bitterly complained he simply "did not have a right to a trial by a Ramsey County jury on the Ramsey County charges..." because that trial would not be an impartial one. As a result the court offers no guidance on how to address these thorny issues the next time up. Whew, that was close.

The court then addresses the severance motion under traditional severance jurisprudence.  The resolution of that question turns on the existence of prejudice, which in this case Mr. Fitch could not show.  Joinder is not prejudicial, the court said, if "evidence of each offense would have been admissible Spreigl evidence in the trial of the other."  State v. Conaway, 319 N.W.2d 35 (Minn. 1982). It was easy enough for the court to say that that was the case for Mr. Fitch, if for no other reason than the two sets of charges occurred roughly five miles and five hours apart.  Finding no prejudice to Mr. Fitch by denying the severance request the court does not have to rule whether the refusal to sever was error.

Under Knaffla, Post Conviction Claim Is Procedurally Barred

Ouk v. State, Minn.S.Ct., 8/24/2016.  A jury convicted Mr. Ouk back in 1992 of two counts of first degree felony murder and two counts of attempted first degree felony murder.  The trial court imposed two life sentences with the possibility of release on the murder verdicts, and two fifteen year sentences of the attempt verdicts, with these sentences to be served consecutively.  

Mr. Ouk brought this action in his view to correct his sentence under Rule 27.03, subd. 9.  He said that the juvenile court had failed to follow the proper procedure for certifying him to stand trial as an adult.  The trial court construed this pleading as a post conviction petition because the petition challenged more than just his sentence.  Johnson v. State, 877 N.W.2d 776 (Minn. 2016); State v. Coles, 862 N.W.2d 477 (Minn. 2015.)  It then summarily denied the petition under the Knaffla rule that says, among other things, that after direct appeal, claims that a petitioner knew about or should have known about at the time of direct appeal are procedurally barred.

Justice G. Barry Anderson says that the post conviction court got it right.  After certification occurred, Mr. Ouk either knew or should have known whether the juvenile court messed things up so Knaffla eliminates that claim from further challenge.  Because Mr. Ouk did not allege any exception to the statutory two year limitations statute, the court can continue to dodge the question whether Knaffla has survived the recent amendments to Chapter 590.

Court Recognizes Retroactivity of Miller v. Alabama, Imposes Life Sentence With Possibility of Release After 30 Years For Juvenile Offender Whose Sentence Was Final Before Miller

Jackson v. State, Minn.S.Ct., 8/3/2016.  The state charged Mr. Jackson with premeditated murder; he was seventeen years old.  A jury convicted him, and the trial court imposed a life sentence without possibility of release under a statute that required that result without exception.

After Mr. Jackson's conviction and sentence became final the U.S. Supreme Court held in Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012), that mandatory imposition of life without possibility of release is unconstitutional as applied to juveniles under the Eighth Amendment.  In Chambers v. State, 831 N.W.2d 311 (Minn. 2013), and in Roman Nose v. State, 845 N.W.2d 193 (Minn.2014), the Minnesota Supreme Court held that Miller v. Alabama, was not retroactive.  Earlier this year the U.S. Supreme Court held that Miller v. Alabama is retroactive, overruling both Chambers and Roman Nose.  Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016).

Justice G. Barry Anderson had joined the opinion in Chambers, and had written a concurring opinion in Roman Nose wherein he wished that SCOTUS would answer the retroactivity question.   With none of the dissenters in Chambers and Roman Nose - Justices Page and Paul Anderson - still on the court, Justice G. Barry Anderson gets to write the obituaries of these two opinions, one supposes because he kept wishing that SCOTUS would answer the retroactivity question.

Jackson's mandatory life sentence without possibility of release clearly violates Miller.  So, the meat of the opinion is determining what the remedy is.  The state argued that the remedy was to remand the case back to the trial court for a "Miller hearing." Without dissent, however, the court does remand the case, but with instructions to impose a life sentence with possibility of release after serving thirty years.  This is the "last text standing" before the legislature enacted the now unconstitutional mandatory life without possibility of release statute for juvenile offenders. The court simply thought that too much time had passed - 10 years for Jackson - for any kind of meaningful "Miller hearing" to occur:

A Miller-hearing remedy provides inadequate relief in a retroactive context for a juvenile such as Jackson, whose sentence was imposed nearly 10 years ago. Based on the significant passage of time since Jackson’s 2006 sentencing, holding a fair and meaningful Miller hearing is not possible. 

Concluding, the Justice stated:

We hold that Minn. Stat. §§ 609.106, subd. 2, 244.05, subds. 4-5 (2014), are severed as applied to Jackson and any juvenile offenders who received mandatory LWOR sentences that were final before the Miller rule was announced. The most recent constitutional versions of those statutes are revived. Based on Jackson’s conviction of first-degree premeditated murder, the revived statutes require a sentence of life imprisonment with the possibility of release after 30 years, Minn. Stat. §§ 609.106, subd. 2, 244.05, subds. 4-5 (2004). Therefore, we vacate Jackson’s LWOR sentence and remand to the district court for imposition of a sentence of life imprisonment with the possibility of release after 30 years

Just how this will play out for the other juvenile offenders who received mandatory life without possibility of release sentences that were final before the Miller rule was announced remains to be seen. The state has shown no willingness to abandon the preservation of these unconstitutional sentences and so likely each juvenile's case will have to be litigated separately.

Post Conviction Claims Knaffla Barred

Fairbanks v. State, Minn.S.Ct., 7/20/2016.  A jury convicted Mr. Fairbanks of first degree murder and nine other felonies associated with the homicide of a deputy sheriff.  The supreme court affirmed his murder conviction and all by one of the other felony convictions in 2014. In this post conviction petition Mr. Fairbanks says that he didn't actually cause the death of the deputy sheriff.  He based this claim by asserting - as he apparently did at trial - that in part the family's decision to refuse further medical treatment caused the death.  That is, Mr. Fairbanks is saying that the family committed euthanasia.

Now, before trial the defense and the state struck a deal whereby the defense wouldn't make the euthanasia claim and the state would neither argue about the definition of euthanasia nor ask the medical examiner whether euthanasia caused the deputy's death.  Mr. Fairbanks signed off on this arrangement on the record.  On direct appeal, Mr. Fairbanks did not raise the causation issue.  Justice G. Barry Anderson concluded that Mr. Fairbanks' causation claim was barred under Knaffla because he could have raised the claim on direct appeal but failed to do.  Mr. Fairbanks did not suggest that either of the Knaffla exceptions applied.

Denial of Request During Trial For Advisory Counsel to Assume Full Representation was Harmless Error

State v. Chavez-Nelson, Minn.S.Ct., 7/6/2016.  Mr. Chavez-Nelson is serving a life sentence without possibility of release for a conviction of first degree premeditated murder.  About a week before trial Mr. Chavez-Nelson discharged his appointed counsel; he said that he disagreed with them about trial strategy.  Mr. Chavez-Nelson also asked the trial court for a continuance so that he could retain private counsel; the trial court denied that request, and declined to appoint new counsel to represent him.  On the first day of trial, the trial court appointed attorneys who had no prior involvement with Mr. Chavez-Nelson's case as advisory counsel.

The very next day, the jury panel having spent the rest of the first day completing a questionnaire, Mr. Chavez-Nelson asked that his advisory counsel assume full representation of his case.  The trial court saw this as a backdoor attempt to obtain substitute counsel and denied the request.  The court did repeat what it had been saying the previous day that it would reappoint Mr. Chavez-Nelson's original appointed counsel.

On the third day of jury selection Mr. Chavez-Nelson said that he would be open to having his original counsel reappointed to represent him.  The court did just that at the end of jury selection the following day and then gave those off-again, on-again attorneys a short continuance to gear back up for trial.  Original counsel represented Mr. Chavez-Nelson for the remainder of trial.

Mr. Chavez-Nelson complained on appeal about the denial of his request for advisory counsel to assume full representation of his case.  He pointed to the rule under which the trial court appointted advisory counsel, Rule 5.04, subd. 2(2)(b), which says that when advisory counsel has been appointed"

“because of concerns about delays in completing the trial, the potential disruption by the defendant, or the complexity or length of the trial,” advisory counsel will assume full representation of the defendant if the defendant “requests advisory counsel to take over representation during the proceeding.”

Under this rule Justice G. Barry Anderson said that Mr. Chavez-Nelson had a right to request that advisory counsel assume full representation and the trial court's denial of that request was an error.  The Justice suggests that this would not have been the case had advisory counsel been appointed under subdivision 2(1) of this rule.  This rule says that the trial court may appoint advisory counsel because of concerns about the fairness of the process but it does not include the language about having advisory counsel take over at a defendant's request.

The court then had to decide whether this error in denying the request that advisory counsel assume full representation entitled Mr. Chavez-Nelson to a new trial.  Justice Anderson concluded that this error was not a structural error, at least where the only time that Mr. Chavez-Nelson was not represented was during jury selection, which was more or less by his choice. Ignoring this rather dubious distinction for now, it suggests that had the request come at a different point in the trial the court may have looked at the error differently.  The court went on to conclude that the error was harmless.

An attempt Conviction Does Not Authorize Conditional Release Term

State v. Noggle, Minn.S.Ct., 7/6/2016.  Mr. Noogle pleaded guilty to attempted third-degree criminal sexual conduct.  The attempt statute is Minn.Stat. 609.17.  The Complaint referenced the CSC statute that Mr. Noggle attempted to commit but that Complaint did not charge him with that offense. In the ensuing eight years Mr. Noggle worked his way up from a stay of adjudication to a stay of imposition to an executed sentence.  When the court executed the sentence it also imposed a ten year conditional release term.  Mr. Noggle challenges this conditional release term.

Justice G. Barry Anderson looks at the conditional release statute, Minn.Stat. 609.3455, subd. 6, and sees that attempted third degree criminal sexual conduct is not one of the enumerated statutes that trigger the conditional release term.  Here's what the statute says:

Subd. 6. Mandatory ten-year conditional release term. Notwithstanding the statutory maximum sentence otherwise applicable to the offense . . . when a court commits an offender to the custody of the commissioner of corrections for a violation of section 609.342, 609.343, 609.344, 609.345, or 609.3453, the court shall provide that, after the offender has been released from prison, the commissioner shall place the offender on conditional release for ten years.

Caught by its own obsessive insistence of looking to "the plain language of the statute" the court has no choice but to reverse the lower court's pronouncement of the conditional release term.  

The court resoundingly rebukes the court of appeals for saying that a conviction for an attempt crime is also a violation of the crime attempted.  The court also rejected the notion that an attempt is a "sentence modifier" rather than a crime distinct from the attempted offense.  As long ago as 1980 the court had declared that the crimes of attempt and conspiracy were separate crimes.  State v. Olkon, 299 N.W.2d 89 (Minn. 1980).

Post Conviction Claims Untimely Under Limitations Statute

Bolstad v. State, Minn.S.Ct., 3/23/2016.  Mr. Bolstad is serving a life sentence without possibility of release.  In this his second post conviction petition he says that the trial court erroneously instructed the jury in response to a jury question, and that the post conviction court should have used its supervisory powers to grant him a new trial "in the interests of justice."  The post conviction court summarily denied the petition and Justice G. Barry Anderson affirms.

Justice Anderson says that Mr. Bolstad's claims are untimely under the post conviction statute.  Mr. Bolstad countered that his petition should be considered because it is "not frivolous and is in the interests of justice."  Minn.Stat. 590.01, subd. 4(b)(5).  The statue also, however, requires that even if the claim meets 4(b)(5) the claim has to be filed within two years of the date when the "claim arises." Minn.Stat. 590.01, subd. 4(c).  A claim arises when a petitioner either knew or should have known that he had a claim. Mr. Bolstad's trial attorney actually objected to the jury instruction so Justice Anderson concludes that the post conviction court correctly determined that Mr. Bolstad knew or should have known about the claim at the time of trial, from which he had two years to do something about it. The court again declines to abandon the "knew or should have known" standard in favor of an actual knowledge standard.  Finally, the court declines to equitably toll the limitations period despite Mr. Bolstad's claims of poor health and other hardships.

As to the supervisory powers claim, the court points out that the trial courts don't have such powers and the court that does declines to exercise it.

Defendant Failed to Prove Mental Illness Defense

State v. Roberts, Minn.S.Ct., 3/16/2016.  Mr. Roberts stabbed to death two of his family members in the (apparently incorrect) belief that he was under attack from them, that one of the practiced witchcraft, and that he was in a battle with them "for his soul." After the stabbings, Mr. Roberts disposed of some of the evidence and drove west, getting as far as Waterloo, Iowa where he rolled the car.  Mr. Roberts then fled on foot, but police caught up with him a few blocks away.  He refused an officer's command to get on the ground, although he stated that he understood the order.  Later, at the jail in Waterloo, Mr. Roberts screamed inaudibly at an officer and then fell asleep.  Still later, he cooperated with various commands given him, including one to change into a jail jumpsuit.

Mr. Roberts waived a jury and asserted a mental health defense in the second part of the trial.  Minnesota still adheres to a nineteenth century English House of Lords ruling, M'Naghten's Case, 8 Eng. Rep. 718, 722, 10 Cl. & Fin. 200, 210 (1843).  The Lords decreed that to establish an insanity defense:

the defendant must prove that “at the time of the committing of the act, [the defendant] was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”

The trial court found that Mr. Roberts suffered from a mental illness and that he knew the "nature" of his acts, in the sense that he knew that he was stabbing members of his family multiple times. So, that got Justice G. Barry Anderson to that last part of M'Naghten, knowing the what he was doing was wrong.  Whether Mr. Roberts knew that what he was doing was wrong is not a legal question; it's a moral one.    State v. Ulm, 326 N.W.2d 159, 161 (Minn. 1982).  

The trial court and Justice Anderson mostly relied upon Mr. Roberts' conduct before and after the stabbings to conclude that he had not shown that "he did not know that his conduct was morally wrong at the time of the murders."  Just how anyone is capable of making this determination isn't really explained.  Rather the court just glosses over the very distinction that Ulm requires in order to get to this conclusion.  Doing so thereby ignores that whether actions are "moral" is a subjective determination.  Mr. Roberts could just as likely concluded that stabbing his family members to death was unlawful but that he was morally obligated to do so because of, say, the practice of witchcraft.  

Everyone agreed that a determination of Mr. Robert's "mind set" at the time of the murders would be based upon circumstantial evidence.   (Had Mr. Roberts been "actively psychotic" at the time of his apprehension and initial police questioning this may have been direct evidence of that mind set.)  The "circumstantial evidence" test that the court so recently adopted,  State v. Al-Naseer, 788 N.W.2d 469 (Minn. 2010), was, however, never in play.  Instead, Justice Anderson applied a "clearly erroneous" standard to the trial court's determination.

Abandoning Thirty Years of Jurisprudence Court Adopts A "Good Faith Exception" to Exclusionary Rule

State v. Lindquist, Minn.S.Ct., 8/19/2015.  In an unusual judicial alignment, Justice G. Barry Anderson ends Minnesota's long, long resistance to adoption of a "good faith exception" to the Fourth Amendment's exclusionary rule.  Justices Dietzen, Wright and Stras join in the majority opinion while Chief Justice Gildea, Justices Page and Lillehaug dissent, although for different reasons.  Strange bedfellows indeed.  

Just two years ago in State v. Brooks, only Justice Stras wanted to adopt a "good faith" exception.  He got no votes then (although Justice Wright did not participate).  Here's what Justice Stras wrote in Brooks:

I would affirm the decision to admit the blood-alcohol evidence from each of the searches in this case based on the rule from Davis v. United States, ___ U.S. ___, 131 S. Ct. 2419 (2011). Under Davis, “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Id. at ___, 131 S. Ct. at 2423-24. Davis builds upon the good-faith exception to the exclusionary rule first articulated in United States v. Leon, which held that the Fourth Amendment does not require suppression of “evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate,” even if the warrant is later found to be defective. 468 U.S. 897, 913 (1984). 

After only five years on the court, and just barely two years after Brooks, Justice Stras wipes out thirty years of judicial refusal to adopt such an exception.

Ms. Lindquist was convicted of third degree driving while impaired.  The trial court admitted test results of her alcohol concentration that were based on a warrantless blood draw.  While her conviction was on direct appeal the U.S. Supreme Court decided McNeely, which rejected the single factor exigency rationale of State v. Netland, 762 N.W.2d 202 (Minn. 2009). Justice Anderson abandons the court's thirty year refusal to adopt any form of a "good faith exception" to the exclusionary rule.

The court consoles the dissenters by saying that its holding is limited to searches "conducted in objectively reasonable reliance on binding [Minnesota] appellate precedent."  

We note the narrowness of our holding, however. The Davis goodfaith exception represents a small fragment of federal good-faith jurisprudence. The State has not asked us here to consider any other good-faith exception to the exclusionary rule, and nothing in our opinion should be construed as authorizing the application of exceptions we have not explicitly adopted. Further, the good-faith exception adopted here applies only when law enforcement officers act pursuant to binding appellate precedent, not persuasive precedent from other jurisdictions. In addition, the binding precedent must specifically authorize the behavior. Law enforcement cannot “extend the law” to areas in which no precedent exists or the law is unsettled.

The majority seeks to assuage the dissenters by saying that adoption of Leon's good faith exception for evidence seized by officers in reasonable reliance on a facially valid warrant is left to another day.  Also, the court leaves for another day whether a good faith exception should apply to evidence obtained due to police negligence.  Herring v. United States, 555 U.S. 135 (2009).

Chief Justice Gildea said that the court should not adopt the exception under the Minnesota Constitution:

In my view, our court’s repeated refusal to recognize the good-faith exception to the exclusionary rule, together with Minn. Stat. § 626.21 (2014), establish a Minnesota “tradition” that is not consistent with the application of the good-faith exception in this case.

The Chief also agreed with Justice Page that the majority's decision was inconsistent with that history, and she agreed with Justice Lillehaug's view that Minn.Stat. 626.21 is a statutory codification of the exclusionary rule that prevents application of a good faith exception in Minnesota.  Justice Page, who was not assuaged in the least, was more emphatic, predicting that this decision opens the floodgates to the inevitable adoption of the other federally adopted exceptions to the exclusionary rule:

It is apparent that the court is willing to go to any length— including ignoring Minn. Const. art. I, § 8,1 and art. I, § 102—to protect its erroneous decision in State v. Shriner, 751 N.W.2d 538, 545 (Minn. 2008) (establishing that the evanescent nature of alcohol in the bloodstream is a single-factor exigency), abrogated by Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 1568 (2013) (holding that, contrary to this court’s decision in Shriner, the dissipation of alcohol in the blood does not create a per se exigency), and its progeny. In State v. Bernard, we “fundamentally depart[ed] from longstanding Fourth Amendment principles” to justify a warrantless breath test as a valid search incident to arrest—“creating a novel bright-line rule” that “simply readopts a per se exigency under a different name.” 859 N.W.2d 762, 774, 779 (Minn. 2015) (Page, J., & Stras, J., dissenting jointly). Now, adopting the good-faith exception, the court cavalierly ignores Minn. Const. art. I, § 8, and would have us believe, contrary to federal precedent and its own reasoning, that its decision is a “narrow” one. The court acts as though “we live[] in a world without Missouri v. McNeely,” Bernard, 859 N.W.2d at 774 (Page, J., & Stras, J., dissenting jointly), and without Minn. Const. art. I, § 8. “But we do not live in such a world.” Id. McNeely is decided, and the court can avoid Minn. Const. art. I, § 8, only by mischaracterizing the right at issue in this case and taking away the only available remedy for the violation of a constitutional right. The court accomplishes this by equating violations of Minn. Const. art. I, § 10, to causes of action not recognized at the common law—a concept not contemplated by the drafters of Article I, Section 8.

Post Conviction Claims Are Time Barred

Evans v. State, Minn.S.Ct., 8/5/2015. Mr. Evans filed a motion under a civil procedure rule, Rule 60.02, which alleged various claims, including ineffective assistance of both trial and appellate counsel.  The district court treated the motion as a second post conviction petition and summarily denied it as untimely under the two year limitations period.  Justice G. Barry Anderson, for a unanimous court, affirms.

The court ducks the question - maybe two questions actually - whether it's correct to treat a Rule 60.02 motion as a post conviction petition (which subsumes the question whether a criminal litigant can resort to the civil rule ) - with its usual "It doesn't matter" response.  Treated either way, Mr. Evans' claims, basically a riff on his first post conviction petition, remain barred.

Court Approves Imposing Same Sentence on Remand From Successful Appeal Even Though Sentence Is On Lesser Included Offense

State v. Kangbateh, Minn.S.Ct., 8/5/2015.  A jury convicted Mr. Kangbateh of attempted second degree murder for the benefit of a gang, attempted second degree murder, second degree assault for for the benefit of a gang, and second degree assault.  The trial court sentenced Mr. Kangbateh to an executed term of 165 months on the attempted second degree murder for the benefit of a gang.  For Mr. Kangbateh's criminal history score, the presumptive sentencing range was 130 months to 183 months, with a presumptive duration of 153 months.  The trial court imposed an executed sentence of 165 months; more about that later.

Mr. Kangbateh appealed.  The court of appeals agreed with him that the state had failed to present sufficient evidence on the benefit of a gang so it reversed his convictions of attempted second degree murder for the benefit of a gang and second degree assault for the benefit of a gang.  That court remanded with instructions to sentence Mr. Kangbateh on the (plain) attempted second degree murder.

On remand, the trial court imposed an executed term of, well, the exact same 165 months on the lesser included offense of attempted second degree murder.  Mr. Kangbateh appealed that sentence.  He said that at the first sentencing, the trial court had imposed a sentence of 153 months on the attempted second degree murder and that that sentence was then automatically enhanced an additional twelve months for the gang benefit element.  On remand, Mr. Kangbateh argued, the trial court was stuck with that 153 months even though by this time the trial court was sentencing him for an entirely different offense, "plain" attempted second degree murder. Now to give him 165 months on the "plain" attempted second degree murder violated the Prudhomme rule that says that a defendant can't get more time after a successful appeal than originally imposed. Justice Anderson, for five members of the court, rejects this argument in a form over substance sleight of hand.  Here's how it goes.

At the sentencing hearing, no one - not the court, the defense, the prosecutor, the probation officer who wrote the PSI - bothered to mention explicitly this 153 plus 12 months analysis.  Apparently, this 165 sentence, which is exactly the presumptive duration of 153 months plus the 12 month enhancement for the gang benefit, just sort of fell out of the ceiling during the initial sentencing hearing. On remand for sentencing on the "plain" attempted second degree murder count, the trial judge just happened to up the presumptive duration of 153 by exactly 12 months.  

To justify this, the court changes the subject.  Now it's whether the trial court was being "vindictive" at the remand sentencing rather than that the trial court had come to the correct initial sentence - 153 + 12 - without realizing it and was now stuck with the 153. The majority is unwilling to find such vindictiveness and so the sentence on this lesser included offense is affirmed.

This result produces an unlikely pairing of Chief Justice Gildea and Justice Page dissenting.  They are unwilling to go down this rabbit hole.  Here's how Justice Page's dissent begins:

I respectfully dissent. In my view, the sentencing court calculated Kangbateh’s initial sentence of 165 months by adhering to the Minnesota Sentencing Guidelines, which required the sentencing court to add 12 months for the offense committed for the benefit of a gang to the presumptive duration for the predicate offense of attempted second-degree murder. 1 Because it is axiomatic that a defendant may not be punished for an offense for which there is no conviction and because in this case we know that Kangbateh’s original sentence specifically included 12 months for an offense that was reversed on appeal, on remand the sentencing court was required, at a minimum, to subtract 12 months from Kangbateh’s sentence.

Crime of Clergy Sexual Conduct Does Not Require Proof That Clergy Had Knowledge that Complainant Sought or Received Religious Advice

State v. Wenthe, Minn.S.Ct., 6/24/2015.  A jury convicted Mr. Wenthe of third degree criminal sexual conduct for "sexually penetrating A.F. - a member of the parish where Wenthe served as priest - at a single meeting at which A.F. sought spiritual counsel." Mr. Wenthe has been in and out of the appellate courts several times now, go here, here, and here.  Most recently, the court of appeals had (again) reversed that conviction and the state sought review.  Justice Anderson, for four members of the court - Dietzen and Wright not participating and Page dissenting - now (again) reverses the court of appeals.  Justice Anderson addressed each of the three issues on which the court of appeals had reversed.

At trial the court gave the standard instruction on unanimity.  On appeal Mr. Wenthe argued successfully that it had been plain error for the trial court not to have given an instruction that the jury must unanimously agree on which of several meetings between A.F. and Mr. Wenthe that he violated the statute.  The trial court declined to give that instruction but the court of appeals said that it should have done so, that it was plain error and that it required a new trial. Justice Anderson awards this decision to the trial court without really deciding the question.  Instead, the justice said that if there were error it did not affect Mr. Wenthe's substantial rights.

Second, the defense did ask the trial court to instruct the jury that a clergy member must have subjective knowledge of the purpose of the meeting at which sexual penetration occurs.  The trial court declined the request and gave a knowledge instruction that only went to the element, intent to sexually penetrate.  The court of appeals concluded that this was error because the statute required proof of a "particularized knowledge" that the complainant sought spiritual counsel.

Justice Anderson says, no, that's not what the statute says so that's not what it requires.  Here's the pertinent portion of the statute, Minn.Stat. 609.344, subd. 1(I):

A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exists: . . . .

(l) the actor is or purports to be a member of the clergy, the complainant is not married to the actor, and: 

...

(ii) the sexual penetration occurred during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private. Consent by the complainant is not a defense . . . .

The justices can't find anything about a knowledge requirement here and under its literalist approach to jurisprudence are not about to insert one. That's a legislative function. Also, because previous case law requires that sexual penetration must be intention, then the statute survives the claim that without an additional knowledge requirement its a strict liability offense.

Finally, at trial Mr. Wenthe had sought to introduce evidence of A.F.'s sexual history. The state parried the request by promising only to introduce evidence of A.F.'s sexual abuse as a child. The state broke that promise, however, when it elicited testimony from A.F. that she was sexually inexperienced. Justice Anderson said that the state should have kept its promise and that the trial court made a mistake by permitting the receipt of the "inexperience" evidence. That mistake, however, did not amount to an abuse of discretion, which is the appellate review standard of evidentiary rulings. And, to cover the bases, if the ruling was an abuse of discretion it was harmless.

Justice Page dissented on all three of the majority's rulings.

Erroneous Instruction on Definition of “Domestic Abuse” and Improper Limitations on Defense Closing Argument Results in New Trial

State v. Bustos, Minn.S.Ct., 4/1/2015.  In a 4-3 decision Justice Anderson awards Mr. Bustos a new trial because of errors in the court’s jury instructions and improper restrictions on defense counsel’s closing argument.  Joining Justice Anderson are Justices Page, Lillehaug, and Stras.  Justice Wright, heir apparent to a seat on the Eighth Circuit Court of Appeals, perhaps the most conservative federal circuit, dissents, joined by Chief Justice Gildea and Justice Dietzen.

A jury convicted Mr. Bustos of first degree murder, past pattern of domestic abuse.  The state alleged and presented evidence about five incidents of domestic abuse.  “Domestic Abuse” is a defined term.  Minn.Stat. 609.185, Subd. (e)(1).  It’s an act that is a violation of enumerated statutes – assault, criminal sexual conduct, and terroristic threats - committed against the victim who is a family or household member.  The definition also includes “similar laws of the United States or any other state.”  Here’s how the trial court defined “domestic abuse” to the jury:

Second, the injury causing the death of Dominga Limon occurred while the defendant was committing domestic abuse. Minnesota Statutes define “domestic abuse” as an act amounting to assault, domestic assault, criminal sexual conduct, terroristic threats, or similar acts if committed against a family or household member.

It’s that last phrase, “or similar acts if committed against a family or household member” that’s wrong.  The court’s instruction goes beyond the enumerated Minnesota crimes and violations of “similar laws” of the United States or other states.  The  court’s instruction invites the jury to believe, incorrectly, that “domestic abuse” includes even non-criminal acts that are similar to the listed crimes.  This expansive definition was plain error.

The other error had to do with the trial court’s restriction on defense counsel’s closing argument.  The trial court told defense counsel that he could not argue that the state was required to prove any alleged incident of prior domestic abuse beyond a reasonable doubt.  Defense counsel could argue that the state had to prove a “past pattern” beyond a reasonable doubt. 

Now, the element of “past pattern of domestic abuse” is defined as conduct consisting of two or more prior acts that are proximate in time to each other and reflect “a regular way of acting.”  State v. Hayes, 831 N.W.2d 546 (Minn. 2013).  If the state alleges prior acts in excess of what is necessary to prove the element, it need not prove each prior act beyond a reasonable doubt.  State v. Kelbel, 648 N.W.2d 690 (Minn. 2002).  The jurors must, however, agree that at least two underlying acts of domestic abuse were proven beyond a reasonable doubt even if they disagree about which two acts satisfy that requirement.  The flip side of that requirement is that the defense must be allowed to argue that an acquittal is appropriate if the state fails to prove any of the prior incidents beyond a reasonable doubt.  Or, if the state alleged four prior incidents the defense must be allowed to argue that an acquittal is appropriate because the state failed to prove beyond a reasonable doubt three of the four prior incidents.  As a consequence the trial court’s restriction on closing argument was also plain error.

The majority ducks the question whether any one of these plain errors entitled Mr. Bustos to a new trial.  Instead, the majority said that the cumulative impact of these two plain errors did entitle him to a new trial.