DSRA Increased Weight Threshold Does Not Entitle Defendant To Dismissal of Charges

State v. Otto, Minn.S.Ct., 7/26/2017.  This is a companion case to State v. Kirby, decided the same day with basically the same alignment of justices.  Just as Mr. Kirby got the benefit of the reduced Guidelines sentencing range, so, too, does Mr. Otto.

The added wrinkle for Mr. Otto is that the DSRA increased the weight threshold for his crime of conviction.  Mr. Otto possessed 29 grams of methamphetamine, which at the time of his trial satisfied the weight threshold of 25 grams.  After enactment of the DSRA, however, those 29 grams no longer satisfied the weight threshold.  Mr. Otto said that his conviction should be vacated and the charges dismissed.  Justice Lillehaug, for all seven members of the court, reject this assertion, pointing to the DSRA language that says that the new legislation did not apply to crimes committed prior to its effective date.

Offenders Whose Convictions Were Not Final on Effective Date of Drug Sentencing Reform Act Get Benefit of Reduced Guidelines Sentencing Ranges

State v. Kirby, Minn.S.Ct., 7/26/2017.  The trial court imposed a presumptive Guidelines sentence of 161 months for Mr. Kirby's conviction of first degree possession of methamphetamine.  The legislature then enacted, and the governor signed, the Drug Sentencing Reform Act (DSRA).  The pertinent part of that Act for Mr. Kirby is that it reduced the presumptive Guidelines sentencing range for his offense.  Mr. Kirby said that he should be re-sentenced under this reduced Guidelines range. In a 4-3 Opinion, Justice Lillehaug agreed.  Justice G. Barry Anderson dissented, joined by Chief Justice Gildea and Justice Stras.

The DSRA said that it applied "to crimes committed on or after [it's effective date]."  Significantly, it did not say something like, "Crimes committed prior to the effective date of this act are not affected by its provisions."  Justice Lillehaug said that a statement to that effect would abrogate what's called "the amelioration doctrine," which says that an offender whose conviction is not yet final gets the benefit of a statute that reduces punishment for the offender's crime.  

Prior cases establish that the amelioration doctrine applies when:

(1) there is no statement by the Legislature that clearly establishes the Legislature’s intent to abrogate the amelioration doctrine; (2) the amendment mitigates punishment; and (3) final judgment has not been entered as of the date the amendment takes effect. 

The state took aim at the first requirement; it threw up a multitude of reasons to support its assertion that the DSRA had abrogated the doctrine.  Justice Lillehaug rejects them all.  The most cogent reason, which is what the dissenters latched onto, are two provisions in the Sentencing Guidelines.  Both of them have been there forever.  The first one says that "The presumptive sentence . . . is determined by the Sentencing Guidelines in effect on the date of the conviction offense . . . . Minn. Sent. Guidelines 2."  Justice Lillehaug concludes, seemingly out of thin air, that this is only a reference to ex post facto, which prohibits a judge from sentencing a defendant under a law that increased punishment from what the punishment was at the time of the offense.  The other Guidelines provision that the state and dissenters pointed to says that policy modifications to the Guidelines apply to offenders whose date of offense is on or after the specified modification date.  Justice Lillehaug decides that policy changes don't include the sentencing Grid.

Arrest Warrant Good Enough To Authorize Cops To Enter Third Person's House to Make the Arrest

State v. deLottinville, Minn.S.Ct., 2/15/2017.  The cops went to an address with an arrest warrant for Ms. deLottinville.  That’s not where Ms. deLottinville lived.  When one of the officers saw Ms. deLottinville through a ground level patio door he immediately went in and arrested her.  Ms. deLottinville said that the arrest warrant wasn’t enough to authorize entry into a third person’s residence.  The trial court, the court of appeals, and now the supreme court disagreed.  Justice Lillehaug puts Minnesota into the camp that says that an arrest warrant is a “bad ass sword” that unlocks any and all doors.  Justice Chutich dissented, concerned that the cops will take this new authority to rely upon an arrest warrant to barge into any and everyone’s house in pursuit of the person named in the warrant.

Payton v. New York, 445 U.S. 573 (1980) says that a valid arrest warrant justifies entry into the home of the subject of the warrant. The Supreme Court, however, has never extended Payton, to permit entry into a third person's home in order to arrest the person named in the arrest warrant.  The Minnesota Supreme Court had previously mused that in that situation the officers may need a search warrant but it wasn't really the holding of the case. State v. Patricelli, 324 N.W.2d 351 (Minn. 1982).

The officer's testimony amazingly similar to that of another officer in an Eighth Circuit Opinion a long time back, United States v. Clifford, 664 F.2d 1090 (8th Cir. 1981).  In that case, officers went to a third person's residence with an arrest warrant for Clifford.  A cop swore he saw and recognized Clifford inside so he went in and arrested him.  The Eighth Circuit said that even assuming that Clifford had a legitimate expectation of privacy in a third person's home, the officer's knowledge of Clifford's presence inside the third person's home justified entry to execute the arrest warrant for Clifford.  Just swap out Clifford for deLottinville - which is exactly what the court of appeals did - and you're done:

[W]hen police have probable cause to believe that the subject of a valid arrest warrant is present as a visitor in the residence of another, police may enter that residence to effectuate the arrest under that warrant without violating the Fourth Amendment rights of the person named therein.

No Error in Excluding Evidence of Past Bad Acts of Victim in Support of Self Defense Claim

State v. Zumberge, Minn.S.Ct., 1/4/2017.  Mr. Zumberge shot and killed his neighbor, Todd Stevens, and shot and wounded Mr. Steven's girlfriend, Jennifer Clevon.  Stevens and Clevon regularly fed deer who came into their yard, a practice that Mr. Zumberge didn't approve.  On the day of the shooting Mr. Zumberge's wife, Paula got into a yelling match with Clevon, who was in her yard across the street.  Stevens came over to Clevon.  Mr. Zumberge grabbed a shotgun, climbed out a basement window and from the back corner of his house shot Stevens and Clevon.  Mr. Zumberge claimed self defense; he claimed to have lip-read Stevens threaten to kill Paula, and he claimed that he saw Stevens reach for his belt. Stevens had a phone holder attached to his belt but was not otherwise armed.  A jury rejected the self defense claim and convicted Mr. Zumberge of the homicide and attempted homicide.

Mr. Zumberge complained on appeal that the trial court had denied him the right to present a complete defense by excluding testimony of a laundry list of past bad acts of either Stevens or Cleven, offered to prove that he had a reasonable fear of great bodily harm from Stevens.  Such evidence is admissible only if Mr. Zumberge proved that he knew of the specific acts at the time of the shooting, and the acts "could legitimately affect a defendant's apprehensions." State v. Matthews, 221 N.W.2d 563 (Minn. 1974).  Evidence of such acts must also be relevant and more probative and prejudicial.

Justice Lillehaug concludes that the excluded evidence was inadmissible for one of three reasons:  it was irrelevant, Mr. Zumberge was unaware of it at the time of the shooting, or it was inadmissible hearsay.  In large part, the Justice said that Mr. Zumberge simply was unaware of the various specific acts at the time of the shooting.  In addition, Mr. Zumberge, himself, testified about a lot of the events so anything else was cumulative.

Mr. Zumberge also complained that the trial court should have given an instruction on murder in the third degree.  Every lesser degree of murder is an included offense, so the real battle is whether a defendant is entitled to any of those lesser included offense instructions based on the evidence presented at trial:

A lesser-included-offense instruction must be given when (1) the lesser offense is included in the charged offense, (2) the evidence provides a rational basis for acquitting the defendant of the offense charged, and (3) the evidence provides a rational basis for convicting the defendant of the lesser-included offense. State v. Dahlin, 695 N.W.2d 588, 598 (Minn. 2005)

Third degree murder is "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life ..." and so forth.  This offense only covers acts “committed without special regard to their effect on any particular person or persons; the act must be committed without a special design upon the particular person or persons with whose murder the accused is charged.” State v. Wahlberg, 296 N.W.2d 408, 417 (Minn. 1980). Third-degree murder “cannot occur where the defendant’s actions were focused on a specific person.” State v. Barnes, 713 N.W.2d 325, 331 (Minn. 2006).  

Well, Mr. Zumberge snuck out a basement window, peeked around the corner of his house and took aim at Mr. Stevens.  Justice Lillehaug thought that looked like Mr. Zumberge was "focused on a specific person."

Officers Had Reasonable Articulable Suspicion To Conduct Dog Sniff of Exterior of Car

State v. Lugo, Minn.S.Ct., 11/30/2016.  The cops were sitting on a "known drug house" outside of which Mr. Lugo was sitting in a car.  After a while Mr. Lugo got out of the car, went into this "known drug house", stayed about twelve minutes, then drove off.  Another set of cops stopped Mr. Lugo.  Mr. Lugo didn't stop right away; rather he pulled into a parking lot, drove across it, turned around, came partially back and finally stopped.  Just before stopping he leaned over in his seat as though he was trying to hide something. Mr. Lugo had recently been arrested for drug possession.  He lied about the identity of the owner of the car.  Last, but not least, he blurted out "Man just take me to jail, please."  

After all that it was time to send in the dog.  Dog sniffed around the exterior of the car and "alerted" to a couple of places.  The resulting search turned up drugs.  Mr. Lugo challenged this search, but limited to bringing in the dog.  On these undisputed facts, Justice Lillehaug concluded that the officer had a reasonable, articulable suspicion that Mr. Lugo was engaged in drug-related criminal activity sufficient to expand the scope of the initial stop to include the dog sniff.

The state had actually lost the suppression hearing in the trial court.  This set up a legal dispute over the proper standard of review when it's the state who is initiating a pretrial appeal.  You can read about that if you're so inclined; suffice it to say that the outcome makes it easier for the state to bring pretrial appeals.

Mysteriously, Justice Stras concurs only in the result.  There's no elucidation of where he parted company with the majority opinion.

Limitations Provisions of Post Conviction Petition Are Not Ex Post Facto Provisions

Jones v. State, Minn.S.Ct., 8/10/2016.  In this post conviction petition Mr. Jones says that the limitations provisions that were enacted in 2005 cannot constitutionally be applied to him because the crimes for which he was found guilty occurred in 1992, long before the limitations provisions were enacted.  To apply the limitations provisions to him violates the federal and state prohibitions on ex post facto laws.  

Justice Lillehaug rejects this assertion.  The limitations provisions did not alter the consequences of any acts that Mr. Jones committed in 1992 and thus did not deprive him of any vested right or create a new obligation or disability regarding a past transaction.

Mr. Jones also argued that Minn.Stat. 631,21, which authorizes a court to order that a criminal action be dismissed applied to his "rare and unusual case."  The Justice also rejects this assertion, saying that the "plain words" of the statute applies to an ongoing criminal case in the district court.

Court Upholds Multiple Sentences for Possession of Pornographic Images Acquired on Different Dates

State v. Bakken, Minn.S.Ct., 8/3/2016.  On seven different days between November and June, Mr. Bakken downloaded to his computer's hard drive seven pornographic images of seven different minors.  The state charged Mr. Bakken with seven counts of possession of pornographic work involving minors.  Mr. Bakken pled guilty to all seven counts.  At sentencing he argued that he could only be convicted and sentenced for one count of possession.  He said that this was so for two reasons:  the "unit of prosecution" is possession of the computer on which the images were stored rather than the individual images stored on it; and his offenses were part of a single behavioral incident.  The trial court rejected this view of the statute and the court of appeals affirmed.  Justice Lillehaug agrees with the trial court. 

On this "unit of prosecution" here's what the statute says:

A person who possesses a pornographic work or a computer disk or computer or other electronic, magnetic, or optical storage system or a storage system of any other type, containing a pornographic work, knowing or with reason to know its content and character, is guilty of a felony . . . .

Justice Lillehaug interprets this language to criminalize both the possession of a pornographic work itself, and the possession of a computer storing a pornographic work.  The state could thus choose to charge Mr. Bakken with possession of seven distinct pornographic works.  

On the "single behavioral incident" claim, the general test is whether the offenses occurred at substantially the same time and place, and whether the conduct was motivated by an effort to obtain a single criminal objective.  State v. Bauer, 792 N.W.2d 825 (Minn. 2011).  Mr. Bakken could only establish one of those factors - place - to the court's satisfaction, perhaps because the parties agreed that the seven offenses occurred in the same place, his mom's bedroom. But, on the other two factors things don't go Mr. Bakken's way. The Justice concludes that the seven offenses were not committed at "substantially the same time;" two of the offenses were completed - downloaded onto the computer hard drive - five days apart, and other offense were separated by over a month.  

Here's what the Justice had to say about whether the seven offenses were motivated by an effort to obtain a single criminal objective:

Even assuming that Bakken possessed each of the pornographic works to satisfy his sexual urges, the mere fact that he committed multiple crimes over time for the same criminal objective does not mean he committed those crimes to attain a single criminal objective,

There's no real guidance here, except for a throwaway line that prosecutors need to be somewhat prudent about piling on hundreds of counts, one for each image.  So long as the prosecutor is exercising "some selectivity in enforcement" the sky's the limit.

Fourteen Day Untimeliness Claim To Have Presented Case to Grand Jury Rejected

State v. Vang, Minn.S.Ct., 7/6/2016.  The state charged Mr. Vang with second degree intentional murder.  Mr. Vang twice offered to plead guilty to that charge, the second time to serve the statutory maximum sentence. The state rejected both offers.  One hundred fifty days later the state presented the case to a grand jury, which indicted Mr. Vang on first degree premeditated murder charges.  Following a bench trial the court found Mr. Vang guilty and sentenced him to life without possibility of release.

Mr. Vang had asked the trial court to dismiss the indictment as untimely under Rule 8.02, subd. 2.  He said that when the court amended the rules of criminal procedure back in 2009 it actually changed the rule notwithstanding the claim of the rules committee that it was only making stylistic and formatting changes.  Here's what the rule said before the 2009 amendments:

If the offense charged in the complaint is 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 presentation of the case to the grand jury shall commence within 14 days from the date of defendant’s appearance in the court under this rule . . . .

And here's what the rule said after the amendments:

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 the defendant’s appearance in the court under this rule, and an indictment or report of no indictment must be returned within a reasonable time. If an indictment is returned, the Omnibus Hearing under Rule 11 must be held as provided by Rule 19.04, subd. 5. 

Mr. Vang said that 2009 amendments changed the rule by triggering the fourteen day deadline in not one but now two instances:  (1) notice under the first sentence; or (2) appearance under this rule. Justice Lillehaug rejects this interpretation.   The Justice said that the two sentences must be read together and that all conditions contained within the two sentences must be met in order to trigger the fourteen day deadline.  That is, the complaint must charge a homicide, the prosecutor must have notified the court of its intent to present the case to the grand jury or the offense must be punishable by life imprisonment, and the defendant must have made an appearance under Rule 8.  And besides, the court said in 2009 that it was not making any substantive changes to the rules and so that's that.

Mr. Vang also argued that he received ineffective assistance of counsel because counsel did not insist on scheduling a plea hearing despite the prosecutor's rejection of his plea offers.  The court rejects this claim, agreeing with the state and the trial court that the prosecutor could have thwarted such action by either dismissing the complaint or by filing an amended complaint that charged first degree murder.

Despite a Slew of Leading Questions to Establish the Elements of Premeditated Murder Plea was Valid

Nelson v. State, Minn.S.Ct. 6/22/2016.  Mr. Nelson pled guilty to first degree premeditated murder for the stabbing death of Vinessa Lozano; he is serving a life sentence without possibility of release. A court-ordered competency examination revealed that he has Asperger's Disorder:

 The examiner found that Nelson was naïve about the criminal justice system, having “absolutely no experience.” The examiner concluded that “Nelson [would] need quite a bit of assistance from his attorney, perhaps more than the average defendant. His degree of naivety coupled with his characterological avoidance, passivity, and lack of interpersonal skills, will require a more active role on the part of his lawyer.” 

 A second examiner concluded that although Mr. Nelson did not have a mental illness defense he believed that the offense would not have occurred but for Mr. Nelson's Asperger's Disorder.  Mr. Nelson entered a guilty plea to the top count of first degree premeditated murder:

When the district court asked Nelson whether he believed Lozano was going to die from the stab wounds, Nelson stated, “I wasn’t sure,” and noted that “it’s not something that I’ve done before.” Nelson added, “[i]t looked serious but I’m not a doctor.” When asked about whether it was his intention to kill Lozano when he stabbed her, Nelson responded, “I think it was . . . just to get her hurt and then . . . to eat with her but it . . . went too far.” When asked if it was his plan to stab Lozano when he began thinking about bringing the knife to work, he told the court that he had “just lashed out irrationally” and that the incident “just happened.”

Well, no one thought this was enough for a valid plea so the lawyers met up with the judge in chambers to cook up a list of questions for Mr. Nelson and the answers.  After a trip to the woodshed with his lawyer, the following colloquy occurred:

THE COURT: Mr. Nelson, at some time during this event, I understand that [D.O.] came outside, is that correct?

NELSON: Yes.

THE COURT: And what did you do?

NELSON: I saw him and shooed him away.

THE COURT: You chased him away?

NELSON: Yes.

THE COURT: All right, and then did you go back after that to continue what you were doing?

NELSON: Yes.

THE COURT: In other words, to continue stabbing Vinessa, is that right?

NELSON: Yes.

THE COURT: And is it true that at one point she grabbed the knife to try to stop you?

 NELSON: Well, that was before [D.O.] appeared.

THE COURT: Before [D.O.] appeared she grabbed the --

NELSON: Yes.

THE COURT: -- knife to try and --

NELSON: Yes.

THE COURT: All right, and did you pull the knife back away from her and keep stabbing her?

NELSON: Yes.

THE COURT: And by doing that, isn’t it -- you intended to kill her?

NELSON: Yes. 

The trial court then pronounced itself satisfied that it was a valid plea and Justice Lillehaug affirms.  

After a while, Mr. Nelson filed a post conviction petition asking to withdraw his plea.  He said it hadn't been entered knowingly, intelligently and voluntarily.  He complained about the "wood shedding," which his trial attorney denied occurred.  Justice Lillehaug is able to pull enough questions and answers from the record to satisfy himself and the court that Mr. Nelson had been aware of the charges and of his rights so it was easy enough to get past the knowingly and intelligently requirements.  The voluntariness requirement got a bit stickier because that gets to the accuracy of the plea.  

When the court was asking Mr. Nelson the open ended questions Mr. Nelson didn't give answers to support the plea, in particular the intention and premeditation to kill.  That's when counsel and the judge called a huddle and the next set of questions - after the wood shedding - were strickly leading questions.

See any open-ended questions here to establish the factual basis? Yes, but when Mr. Nelson gave the wrong answers everyone reverted to leading questions. The Justice not only glosses over this absence of narrative questions that would have permitted Mr. Nelson "to express in his own words what happened."  State v. Raleigh, 778 N.W.2d 90 (Minn. 2010). The court also seemingly relies upon the inadequate answers to the open ended questions - his own words - to conclude that on the entire record the plea was valid.

Making "Wide Right Turn" and Weaving Within Lane Support Traffic Stop

State v. Morse, Minn.S.Ct., 4/11/2016.  An officer pulled Mr. Morse over after seeing him make a "wide right turn" and weave once within his lane.  The cop insisted that Mr. Morse crossed over a virtual center stripe and almost hitting a car that was parked on the opposite side of the road.  The squad video didn't really bear the claim about almost hitting another car, however, and the trial judge declined to make a finding about that.  The trial judge did make a finding that the right hand turn was a bit wide and that Mr. Morse "drifted" within his lane.  Based on the obligatory "totality of the circumstances" the trial court upheld the stop and thus the DWI charge.

The court of appeals said that the right turn statute was unconstitutionally ambiguous and vague.  Justice Lillehaug, however, pointed out that no one had really raised that issue in the trial court and so they were not about to wade into that quagmire. The statute says that the turn must be made "as close as practicable to the right-hand curb or edge of the roadway."  Just what that means remains anyone's guess.

On the validity of the stop, here's what the Justices relied upon to conclude that  it was okay:

The relevant circumstances found by the district court included: (1) the squad-car video supporting the officer’s assertion that Morse’s right turn “onto Okabena Street was not as close as practicable to the right-hand curb or edge of the roadway”; (2) the squad car video showing Morse’s vehicle drifting in its lane; (3) the fact that the events occurred close to 2:00 a.m. bar closing time; (4) the fact that Morse was leaving downtown, an area with bars; and (5) the officer’s training and experience.

Weaving within the lane is apparently a proper factor on which to make a traffic stop.  State v. Ellanson, 293 Minn. 490, 198 N.W.2d 136 (1972).  This fact, alone, is apparently enough "totality" to support the stop.

Courtroom Closures That Are "Administrative in Nature" Do Not Violate Sixth Amendment Public Trial Right

State v. Smith, Minn.S.Ct., 3/11/2016.  Mr. Smith, laying in wait in his basement, shot and killed two teenagers as each separately broke into his house and creeped down the basement steps. Following a series of break-ins that the local authorities had been unsuccessful in solving, Mr. Smith installed an elaborate video and audio surveillance system outside and inside his house.  On Thanksgiving Day, Mr. Smith hid his vehicle to make it appear that he was enjoying the holidays elsewhere, and then he decamped to his basement to see who showed up.  As first Nicholas Brady and then Haile Kifer descended the basement steps Mr. Smith assassinated them. 

Mr. Smith made no apologies for the murders.  Rather, he conveniently audio recorded the events.  His defense at trial was defense of himself and of his dwelling.  Now, the media was all over this case, curious to see if the courts would adopt a "castle doctrine" of justification, which eliminates any duty to retreat before using force in self defense.  But, that's not what came up and it's not ever mentioned in Justice Lillehaug's opinion.  The court doesn't explicitly say but it looks like the trial court gave the standard issue self-defense/defense of dwelling jury intructions.

Instead, Mr. Smith complained about various errors that occurred during the grand jury proceedings.  The claim that stands out as of use in other cases had to do with presentation to the grand jury of "spark of life" testimony: the 8x10 glossy photographs of the two kids and the tearful account of each kid's life and accomplishments. Such testimony has consistently been permitted during trial, up to a point, State v. Graham, 371 N.W.2d 204 (Minn. 1895).  Justice Lillehaug decides that the same rules apply in the grand jury, with this cautionary sentence:

We caution, however, that prosecutors must use this potentially inflammatory tool with care. A prosecutor who unreasonably relies on spark-of-life evidence to tip the grand jury’s decision risks dismissal of the indictment.

Well, two sentences.

So, what occupies the court in its fifty-seven pages?  Closing the courtroom.  In a pretrial hearing the defense asked to be able to present testimony from Nicholas Brady's mother and some of his friends about his involvement in the previous burglaries.  This hearing was open to anyone who wanted to attend and Brady's actual name - not initials - was used throughout the hearing.  Even so, right before the start of trial the trial judge closed the courtroom in order to announce that the defense could not call the witnesses it wanted on the previous burglaries but could elicit that information from other "more neutral (i.e. cops) witnesses. The trial judge seems to have closed the courtroom because he didn't want to use the actual names of the two teenagers, notwithstanding the multiple use of those names during the actual hearing on the motion.

The two Davids - Lillehaug and Stras - went at in on this closure, especially whether a defendant's Sixth Amendment right to a public trial was even implicated by closing the court room during a preliminary hearing.  Justice Lillehaug concluded that the closure was "administrative in nature" and did not violate Mr. Smith's Sixth Amendment right to a public trial.  Just what the reach of this "administrative in nature" rule is remains to be seen but at least encompasses "routine evidentiary rulings and matters traditionally addressed during private bench conferences or conferences in chambers."  

Justice David Stras took a different approach.  First, he said that the trial court had impermissibly closed the courtroom.  However, unless this closure also violated a defendant's public trial right then there is nothing more to be said or done.  Justice Stras takes us down memory lane, back to his view of "common law," to conclude that preliminary hearings are not part of the "trial" to which any Sixth Amendment protections attach. He rejects the "administrative in nature" analysis in favor of an analysis that sks whether the closed hearing was a "trial like proceeding":

When a criminal proceeding involves the presentation of witness testimony, the arguments of counsel on a disputed question, or invocation of the court’s fact-finding function, it is more likely to be subject to the requirements of the Sixth Amendment, whether or not it involves what appears to be an administrative task or a routine evidentiary motion.

Because the actual hearing on the defense motion was completely open, the subsequent closure to announce the ruling - no matter how right or wrong the closure was - did not meet this "trial like proceedings" test and so there was no Sixth Amendment protection available.  

Prosecutor's "Invited Error" Was Harmless Beyond a Reasonable Doubt

State v. Whitson, Minn.S.Ct., 3/2/2016.  Mr. Whitson and his crew drove up to Duluth intending to rob a Mr. Williams, whom they believed had money or drugs or both.  They found Mr. Williams in T.C.'s apartment. Before leaving for Duluth the men had discussed the possibility of having to use a gun in order to accomplish the robbery.  Once inside T.C.'s apartment, sure enough, they needed the gun's assistance.  By the time the men fled the apartment and headed back down I-35 Mr. Williams was dead and T.C. had been shot in the cheek.  A jury convicted Mr. Whitson of first degree murder of Mr. Williams, and first degree attempted premeditated murder of T.C.

The state's main witnesses were T.C. and one of Mr. Whitson's crew, Mr. King.  T.C. didn't know the shooter; she described the shooter as a man wearing a plaid shirt.  Mr. King initially said he didn't know anything about what happened in T.C.'s apartment, but eventually he cut a deal with the prosecutor to testify against Mr. Whitson.  Mr. King testified that he had been with Mr. Whitson when plans for the robbery were made, including the possibility of having to use a gun.  He testified that he heard gun shots inside T.C.'s apartment, turned to see Mr. Whitson holding a gun, saw Mr. Whitson shoot Mr. Williams in the head, and then shoot T.C. 

The defense pointed out  the various inconsistencies of Mr. King's testimony.  The prosecutor then asked Mr. King why he had delayed revealing some of his claims; Mr. King said it was because he had gotten threats against his family.  Now, everyone knew about this claim of threats, and the trial judge had excluded any testimony about those threats.  Mr. King blurted out about the threats anyway because the prosecutor hadn't bothered to instruct Mr. King not to talk about the threats.  The defense objected and moved for a mistrial. The trial judge denied the motion but did basically tell the prosecutor that his failure to warn Mr. King off about the threats invited the error.

But, since this invitation came from the state Justice Lillehaug could and did ignore it.  The court resorts to the usual way out by assuming that the prosecutor screwed up but then concluding that the misconduct was harmless beyond a reasonable doubt.  This test asks whether the jury's verdict was "surely unattributable" to the misconduct.  Justice Lillehaug ticks off the usual litany of reasons why the verdict was not so "surely attributable."  

Mr. Whitson, representing himself in this consolidated direct appeal and appeal from denial of post conviction, made four other arguments, all of which the court said were not supported by the record.

Motion To Reconsider Denial of Post Conviction Petition Does Not Toll Time to Appeal

Hohenwald v. State, Minn.S.Ct., 2/24/2016.  Mr. Hohenwald is serving two consecutive life sentences without the possibility of release.  On July 11, 2012, the supreme court affirmed his convictions.  Read about the facts here, although they have nothing to do with this exercise in counting days on a calendar.

Within the two year limitations period Mr. Hohenwald filed a pro se petition for post conviction relief.  The district court summarily denied that petition on October 24, 2014. On October 27, 2014 Mr. Hohenwald filed a pro se amended post conviction petition, which the trial court denied the next day.

On November 21, 2014 Mr. Hohenwald filed a motion to reconsider the October 27, 2014 order that denied the amended petition.  Then, on November 24, 2014, Mr. Hohenwald filed a motion to reconsider the order that denied the initial petition.  On January 16, 2015, the district court denied both motions to reconsider.

On March 16, 2015, now having obtained counsel, Mr.Hohenwald appealed from the October 2014 orders and from the January 2015 order.  The state said that the appeals from the October orders were untimely because the appeals were not filed within sixty days after entry of them; and they said that the January 2015 order was not appealable.

For those still reading this, here's the short (and, actually the only) version of what Justice Lillehaug says.  Unless the motions to reconsider tolled the sixty day time period for filing an appeal from the October orders, Mr. Hohelwald's appeals of those October orders are untimely.  The court looks to the rules of civil appellate procedure which plainly state that a motion to reconsider does not toll the time to appeal. Prior court opinions also establish that Mr. Hohenwald also cannot appeal from the denial of the motions for reconsideration because such orders are never appealable.  See Limongelli v. GAN Nat'l Ins. Co., 590 N.W.2d 167 (Minn.Ct.App. 1999).

Even a Wilful Violation of a Term of Probation Does Not Constitute Criminal Contempt of Court

State v. Jones, Minn.S.Ct., 8/26/2015.  Remember the business up in Crookston where the state was charging probation violators with contempt of court?  Refresh your memory here.  Justice Lillehaug affirms the opinion of the court of appeals that dismissed the contempt of court charge:

Interpreting both the contempt and probation statutes, we hold that a willful violation of a “term” of probation prescribed at sentencing does not itself constitute the crime of violation of a “mandate of a court” under the criminal contempt statute. 

The state brought contempt of court charges under Minn.Stat. 588.20, Subd. 2(4) which prohibits "wilful disobedience to the lawful process or other mandate of a court."  The question for the court to answer was whether a term of probation, itself, was an "other mandate of a court."  A "mandate," the court concludes, is at least a court order commanding compliance with a direction of the court.  Whether a probation "term" itself is a "mandate" is ambiguous.  The court resolves this ambiguity by observing that the probation statutes nowhere provide or even hint that a wilful violation of a term of probation is criminal contempt.

Court Declines to Disapprove Requirement That Spectators Have Photo Identification In Order to Enter Courtroom

State v. Taylor, II, Minn.S.Ct., 8/26/2015.  A jury convicted Mr. Taylor, II of first degree murder and two counts of attempted first degree murder. Mr. Taylor, II drove his crew, alleged members of a gang, around looking for a rival gang member.  In what turned out to be a mistaken belief that the guys had found this rival, two of the guys got out of the car and started shooting.  One teenager died, one was wounded.  Neither was the rival gang member being sought.

Two of the three who were riding around with Mr. Taylor, II reached plea deals with the state and testified against Mr. Taylor at trial.  Three jail informants also testified against him.  Two jail phone calls by Mr. Taylor II were admitted into evidence: one in which he expressed regret for not bailing out and taking off; the other in which he seemingly discussed an alibi defense with his girlfriend.  Mr. Taylor, II also testified in his own defense.  He denied having anything to do with the shootings and he denied any gang affiliation.  In response, the state put up a gang expert who had examined two photographs already admitted into evidence without objection.  In one photo, Mr. Taylor, II appeared to be displaying a symbol associated with the gang that the state said he belonged to.  In the other he was displaying a sign that was disrespectful of the rival gang whose member they had been searching for on the night of the shooting

The jury convicted Mr. Taylor, II of all counts.  On appeal, he presented eight errors:

(1) it excluded from the courtroom members of the public that did not have photographic identification; (2) it excluded evidence supporting an alternative motive of the eyewitnesses; (3) it admitted testimony from a gang expert identifying Taylor as a gang member; (4) it gave jury instructions on aiding and abetting liability that did not include certain elements; (5) it did not sua sponte instruct the jury that appellant’s prior convictions could only be used for impeachment purposes; (6) it violated his right to a speedy trial; (7) it admitted a note protected by attorney-client privilege; and (8) it admitted prison phone call recordings.

The trial court established a set of rules for spectators at trial, one of which was to show photographic identification before being allowed entry into the courtroom.  Mr. Taylor, II did not object to this rule and there was nothing in the record by which to determine whether this identification rule was enforced and, if so, whether anyone who sought to enter the courtroom without a photo ID could not do so.  This was enough for Justice Lillehaug, with only Justice Page dissenting, to say, "No harm, no foul."

The court treated this photo ID requirement as a partial closure of the courtroom even though there was no proof that any closure actually occurred.  In past opinions, the court has disapproved the exclusion of a defendant's brother and cousin from the courtroom, State v. Mahkuk, 736 N.W.2d 675 (Minn. 2007; and disapproved the exclusion of all spectators during the testimony of two minor victims of sexual assault, State v. Fageroos, 531 N.W.2d 199 (Minn. 1995).  In each of those cases the court had determined that the trial court had failed to make adequate findings to support the closure decision.  In two other instances, however, the court approved what it characterized as "partial closures" of the courtroom during a trial.  In State v. Brown, 815 N.W.2d 609 (Minn. 2012), the trial court had locked the doors during closing arguments but without clearing the place of spectators already there. And, in State v. Lindsey, 632 N.W.2d 652 (Minn. 2001), the trial court had excluded underage spectators.  In those cases, the supreme court had concluded that these sorts of partial closures were "too trivial" to amount to a violation of the defendant's Sixth Amendment right to a public trial.

Justice Lillehaug ducks the question whether the rule, itself, is a violation of a defendant's Sixth Amendment right to a public trial. The Justice, instead, reframes the issue to ask whether anyone got excluded from the courtroom by operation of the rule. This put the Justice in the rather awkward, if not unseemly, position of condoning the practice of requiring a photo ID in order to enter a public courtroom. After all if the rule, itself, violates the Sixth Amendment then there's no reason to start counting heads to see who got in and got sent home.  

The Justice's reasoning gets even more fuzzy.  The justice finds no evidence that the photo ID rule had either been enforced or had resulted in anyone's exclusion, yet he, nonetheless, still looks to "partial closure" opinions to decide the reframed question.  The court concludes that although the record says that not one person got excluded the situation was more like Brown and Lindsey than the other cases.  That is, there was a "closure" but it was "trivial." The Justice did chastise the trial courts that they should not require a photo ID as a condition of entry to the courtroom "unless there is good cause and no reasonable alternative ..."  Again, this implicitly condones the practice of carding people in order to get into a public courtroom.

This all got Justice Page to dissent, warning that the court was on a "march" to limit public access to the courts.  Justice Page pointedly observed that since  permitting the the courtroom closure in Brown there have been nine petitions for review that have challenged a trial court's decision to close or lock the courtroom doors despite cautioning the trial court to take such action "carefully and sparingly."  

Mr. Taylor, II wanted to ask his two co-defendants who testified against him whether they had a motive for the shootings that did not involve him.  The trial court denied this request.  Justice Lillehaug assumed without decided that this was an error but concluded that it was harmless.  Mr. Taylor, II also complained about the admission of testimony from the gang expert.  Again, the court assumed that admitting this evidence was error and then concluded that it was harmless.

Next, Mr. Taylor, II complained about the instruction on accomplice liability even though he hadn't objected to it at trial.  He said on appeal that the trial court should have instructed the jury that his presence at the shooting "did aid the commission of the crime."  This language was added to the pattern jury instructions after Mr. Taylor's trial, in apparent response to State v. Mahkuk, which identified two factors for determining whether a defendant's presence "intentionally aids" another in committing a crime:  that the defendant knew that the alleged accomplices were going to commit a crime, and the defendant intended his presence or actions to further the commission of that crime.  Justice Lillehaug says that the court has never required such language and then goes on to make it abundantly clear that the criminal jury trial instructions committee needs to go back to the drawing board and remove this "did aid" language.

The trial court also instructed on "expansive" liability for the crimes of another - other foreseeable crimes - but failed to say that other crimes committed had to be reasonably foreseeable by Mr. Taylor.  Justice Lillehaug said that this omission does not require automatic reversal, especially on a plain error standard of review. The court also rejected Mr. Taylor's assertion that the instructions should have specified the original intended crime.

Justice Lillehaug upholds the trial court's failure to give the jury a limiting instruction following admission of Mr. Taylor's prior convictions for impeachment purposes.  The problem was, Mr. Taylor hadn't request this instruction.  The court rejected Mr. Taylor's pro se claim that he had been denied his right to a speedy trial. His trial had not commenced until over 100 days after the demand so there is a presumption that a violation had occurred. Only one of the delays in starting trial was attributable to the state. On whether Mr. Taylor, II suffered prejudice from the delay the only possibility here was impairment of his defense.  The court rejected Mr. Taylor's argument that he was prejudiced because the delay gave the state the opportunity to secure plea agreements with his co-defendants.

Finally, the court rejects Mr. Taylor's pro se claim that introduction of a note seized from his jail cell which described one of the guys who was in the car with him as a "lying snitch ass" violated attorney-client privilege, accepting the trial court's finding that the note did not communicate anything to defense counsel regarding his case.  The court also upheld the admission of the two jail phone calls, and his "cumulative error" claim.

Actual Innocence Exception to One Year Federal Habeas Limitations Not Applicable to Minnesota Petition

Wayne v. State, Minn.S.Ct., 7/22/2015.  In this his seventh post conviction petition following his 1980's conviction for murder, Mr. Wayne argues that he is factually innocent, a claim that is not time-barred under the U.S. Supreme Court's decision in McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924 (2013).  McQuiggin said that a claim of actual innocence can overcome the one year limitations period on federal habeas petitions.  Justice Lillehaug said that's all fine and dandy but this is Minnesota, and we're not bound by that pronouncement about federal habeas.

In the alternative, Mr. Wayne said that all of his claims were timely under the "interests of justice exception" to the two year limitations period in Minnesota's post conviction statute.  This exception, however, is triggered by an "injustice" that caused the missing of the two year deadline and has nothing to do with the substance of the claimed injustice.  Sanchez v. State, 816 N.W.2d. 550 (Minn. 2012).  None of his claims in this petition satisfy that requirement.

Direct Appeal Is Proper Method By Which to Challenge Denial of Disqualification For Cause Motion; Asking Trial Judge To Recuse Himself or Herself Is Not Waiver of Right To Refer Disqualification to Chief Judge

State v. Finch, Minn.S.Ct., 7/8/2015.  At sentencing the trial court gave Mr. Finch a dispositional departure on an assault conviction.  The judge told Mr. Finch that if he had any probation violations of any of the conditions of his probation the judge would execute the prison time.  Mr. Finch, apparently a sporting fellow, called the judge’s bluff by getting hit with a probation violation.  Mr. Finch walked away from the workhouse and did not return.  The judge issued an arrest warrant and Mr. Finch turned himself in on the warrant.

When Mr. Finch came in for the revocation hearing his attorney moved to disqualify the judge for cause.  The judge denied that request and Mr. Finch’s alternative request to refer the disqualification motion to the chief judge for determination.  The trial judge eventually revoked Mr. Finch’s probation.  Mr. Finch challenged all that by means of this appeal. 

First, the state said that the only way to challenge denial of a cause disqualification motion was by writ.  Justice Lillehaug rejects this contention by distinguishing an appeal of a peremptory recusal from a appeal of a cause recusal.  Appeal of a peremptory appeal must be by writ.  State v. Dahlin, 753 N.W.2d 300 (Minn. 2008).  But not so for appeal of a cause removal. 

Next, the state said that Mr. Finch had waived his ability to have his disqualification motion referred to the chief judge – and thus be reviewed on appeal - by having first asked the trial judge just to give it up.  There is court of appeals precedent, however, which Justice Lillehaug adopts, that says that a party is entitled to ask the district judge directly for voluntary disqualification.  See State v. Poole, 472 N.W.2d 195 (Minn.Ct.App. 1991).  Justice Lillehaug says that under that precedent, combined with the rule, 26.03, subd. 14(3), asking the district judge first does not preclude referral to the chief judge.  There is no waiver by first asking the trial judge.

The court decided that review of the trial court’s error of not referring the disqualification motion to the chief judge is subject to harmless error rather than structural error.  Mr. Finch does not have to show, however, that the outcome of the proceeding – revocation of his probation – was prejudiced by the error; rather, he must show that the error affected his substantial right to a fair hearing before a decision maker who does not appear to favor one side or the other.  The trial judge’s shot across the bow at sentencing – if you come back with a violation of any of the your conditions of probation you’re going to prison – is what trips up the trial judge.  That and his annoyance that Mr. Finch had appealed the original conviction.  These remarks, indeed, make it appear that the trial judge favors one side over the other.  Justice Lillehaug felt that the judge’s remarks indicated that the trial judge could not impartially determine two of the three Austin factors, that a violation was intentionally or in-excusable, and that the need for confinement outweighed the policies favoring probation. 

  For what it’s worth, Mr. Finch gets a new probation revocation hearing before a different judge.

Seating Actually Biased Juror is Structural Error That Requires New Trial

State v. Fraga, Minn.S.Ct., 4/22/2015.  This is a horrific crime – essentially the stomping to death of a two year old - that is now on its way back to the trial court for a third time, this time because the trial judge was perhaps a bit too impatient to seat a jury and the prosecutor was a bit too aggressive in wanting to keep a particular juror.  In, of all things, a unanimous opinion, Justice Lillehaug pens a strong opinion about juror bias for this ever whimsical court.

During jury selection for the retrial, Mr. Fraga took the position that any potential juror who knew that he had been convicted in the first trial should automatically be excused for trial.  The trial court seated two jurors who knew that the first trial had resulted in a conviction.  Adopting the defense’s position would be an extension of the doctrine of implied bias, which assumes that certain relationships or experiences create a mindset that cannot be changed or set aside.  See Williams v. State, 764 N.W.2d 21 (Minn. 2009); Rule 26.02, Subd. 5 of the rules of criminal procedure.  The court is unwilling to extend this doctrine to potential jurors whose apparent sole disqualification was knowledge of the outcome of Mr. Fraga’s first trial.  In large part, the court reaches this result by its literal reading of the rule, which it says provides “the exclusive grounds to challenge for implied bias.”

Also during jury selection the trial court seated “Juror M.”  Mr. Fraga insisted that Juror M had expressed actual bias and had not been adequately rehabilitated.  The trial court sat this juror anyway.  Permitting a biased juror to serve is structural error requiring automatic reversal.  State v. Logan, 535 N.W.2d 430 (Minn. 1995). 

Juror M’s mother-in-law was a nurse who had worked in the emergency room at the hospital where the two year had been taken.  Juror M thus knew about the case, had read about it, had discussed it with family or friends, including the case details.  When the trial court asked him whether he could put all of that aside and decide the case solely upon what was presented in the courtroom, Juror M said, “Yeah, I guess.”  When the trial court pressed with the question, “Do you know of any reason that you could not be fair and impartial?” Juror M said, “Besides the fact I know about the case, I don’t, no.  I think it would be hard.”  This juror also said that he knew two witnesses and that he would find their testimony more believable based on that familiarity.  He walked that assertion back just a bit by telling the prosecutor that “I can form my own opinion, I guess.”  Finally, Juror M said, “Yes.” to the prosecutor’s leading  question, “So, you would be able to base your decision on what you see and hear in the courtroom?”

By this time the defense was out of peremptory challenges.  The trial court denied the defense motion to remove Juror M for cause.  Even then the court asked Juror M more questions, including, “Is there any reason you can think of you couldn’t be fair and impartial to both sides in this case?”  Juror M said, (one supposes to the disappointment of the trial judge and prosecutor) “I don’t think so.”

Justice Lillehaug concludes from all this back and forth with Juror M that the juror had expressed “actual bias.” The remarks, “Besides the fact I know about the case, I don’t, no.  I think it would be hard.” were enough for the court to make this conclusion.   The other “I guess” remarks just solidified this conclusion.  Justice Lillehaug also concludes that Juror M also was not adequately rehabilitated, which requires that the prospective juror state “unequivocally” that he will set aside preconceived notions and be fair.  Logan.   The prosecutor’s final leading question just didn’t get the job done, especially in the midst of all those “I guess” utterances.

Under Logan, Juror M, having expressed actual bias, can’t sit on the jury and if he does it’s structural error that requires a new trial.  The state pleaded with the court to find a workaround to Logan to avoid yet another trial but the justices were unwilling to do so.  Still and all, the court was embarrassed to have reversed the conviction:

We understand that the relatives of a little girl and others in the community of Worthington have suffered a grievous loss. We understand that they have endured the pain of two trials. We recognize that their grief may be sharpened by the decision today. Still and all, it is a bedrock principle of our law that for a person to be convicted of any crime—major or minor—the jurors must be both impartial and unanimous. Our constitutions and the fairness they embody require that, if we cannot say that each and every juror was impartial, we cannot say that justice was done.

It’s tempting to say that by the court’s unyielding fealty to literalism the court hoisted itself by its own petard.  Juror M just kept saying, “I guess” way too many “Minnesota nice” times for the court to brush aside.  (“To guess” means to “make a conjecture” about something, or to indicate that although one thinks or supposes something it is without any great conviction or strength of feeling.” )  After all, given the broad discretion that trial court’s have in ascertaining a potential juror’s qualifications to serve it would have been just as easy for the justices to conclude that despite the verbalized equivocations the trial court had the best seat in the house to discern Juror M’s true state of mind.

But wait, there’s more!  Mr. Fraga also complained about the admission of evidence under Minn.Stat. 634.20, so called “relationship evidence.”  The court had previously adopted this legislative rule of evidence for similar conduct of the accused against the same victim.  State v. McCoy, 682 N.W.2d 153 (Minn. 2004).  The court now extends adoption of this legislative rule of evidence to include similar conduct of the accused against other family or household members.

Simultaneous Sentencing on Two CSC Pleas Does Trigger Lifetime Conditional Release

State v. Nodes, Minn.S.Ct., 5/6/2015.  During a single plea hearing Mr. Nodes pled guilty to two counts of criminal sexual conduct which arose from separate behavioral incidents with separate victims.  The court deferred acceptance of the guilty pleas and ordered a presentence investigation.  At sentencing, the court accepted the two guilty pleas and then sequentially adjudicated Mr. Nodes guilty of each offense.  The question then came up whether Mr. Nodes was required to serve a conditional release term of ten years or of life.  When a court commits an offender who has a “previous or prior sex offense conviction” to prison for another criminal sexual conduct conviction the conditional release term is for life.

Both the trial court and the court of appeals said that when the court imposed the second sentence Mr. Nodes did not have a “previous or prior sex offense conviction.”  That is, there was offense, offense, followed by conviction, conviction. 

Justice Lillehaug, for the entire court, disagrees, and says that Mr. Nodes is subject to lifetime conditional release.  A “conviction” includes a guilty plea that has been accepted and recorded by the court.  There was no dispute that the trial court accepted Mr. Nodes’ guilty pleas, so the question became just when it had been “recorded by the court.”  Although the court has said different things about when a conviction is “recorded” most recently it’s said that the recording occurs when the court accepts the plea and adjudicates guilt.  So, as soon as the trial court accepted Mr. Nodes’ plea to the first count and then adjudicated guilt he was “convicted.”

See where this is going?  As soon as the trial court accepted the plea to the first count and adjudicated guilt on that count that conviction was no longer a present offense but was a past conviction.  That first conviction became a “prior sex offense conviction.  After the court then took a breach before adjudicating guilt on the second count, what had just become a “prior sex offense conviction” triggered the lifetime conditional release term.

Post Conviction Petition Alleging Ineffective Assistance of Counsel is Time Barred

Wayne v. State of Minnesota, Minn.S.Ct., 3/11/2015.  This is Mr. Wayne’s sixth petition for post conviction relief.  He is serving a life sentence imposed back in 1987.  In this petition he alleges that he received ineffective assistance of trial counsel.  Specifically, he claimed that he had not been informed of a plea offer purportedly discussed during an in-chambers meeting that occurred during his trial.  He said that the plea negotiation cases from a couple of years back by the U.S. Supreme Court – Missouri v. Frye, 132 S.Ct. 1399 (2012), and Laffler v. Cooper, 132 S.Ct. 1376 (2012) established a new interpretation of Sixth Amendment law regarding ineffective assistance of counsel that apply retroactively to him.  That, he said, provides an exception to the two year limitations provisions under the post conviction statute.  The problem was, at least to Justice Lillehaug, was that Mr. Wayne’s claim was time barred because Mr. Wayne could not satisfy this “new interpretation” exception to the limitations provisions because he could not establish that a formal plea offer actually got made to his lawyers and then not communicated to him.