No Retroactive Application of "New Rule" Announced in State v. Her

State v. Meger, Minn.S.Ct., 9/20, 2017.  Mr. Meger pleaded guilty to failure to register as a predatory offender in exchange for a downward departure sentence.  Because the sentence did not include a conditional release period, which should have been imposed because Mr. Meger was a risk-level III offender, the trial court eventually amended Mr. Meger's sentence to include a ten year conditional release period.  This was all going on back in 2006-07.  

Roughly nine or so years later the Minnesota Supreme Court said that the fact of being a risk-level III offender had either to be admitted by the defendant or found by a jury beyond a reasonable doubt before a court could impose this ten year conditional release period.  State v. Her, 862 N.W.2d 692 (Minn. 2015).  By this time, Mr. Meger had long since served his sentence and so his conviction was "final" for purposes of retroactivity jurisprudence.  He sought to have Her applied retroactively to his conditional release period.

Mr. Meger only argued that Her was an "old rule" which Teague says applies both to cases on direct review and to cases on collateral attack.  He said that this is so because Her is nothing more than an application of the Blakeley" decision -plead and prove the facts to get a longer sentence than would otherwise be the case -to the specific circumstances of Mr. Her. Justice McKeig says that, no,  that Her is a "new" rule and thus does not apply retroactively to a decision that is "final."  Teague v. Lane, 489 U.S. 288 (1989); Danforth v. State, 761 N.W.2d 483 (Minn. 2009).   After reviewing a bunch of cases she concludes:

Without the benefit of Descamps and Her, and considering our holdings in Allen, Henderson, and McFee, reasonable jurists at the time Meger’s amended sentence became final would not have felt compelled by existing precedent to rule in his favor on the question of whether an offender’s risk level falls within the prior-conviction exception. Accordingly, we conclude that Her is a new rule that is not retroactive to Meger’s amended sentence. See Butler, 494 U.S. at 415; Houston, 702 N.W.2d at 271.

Evidence Sufficient to Support Felony Murder; No Plain Error in Instructions

State v. Webster, Minn.S.Ct., 5/10/2017.  A jury convicted Mr. Webster of first degree felony murder for the killing of Eulalio Gonzalez-Sanchez. Here's how Mr. Webster said it happened:

On the morning of September 21, 2014, he and Blackwell had been smoking marijuana and were “money hungry.” They were “riding around [northeast Minneapolis] looking for a victim to rob” in Blackwell’s car when they spotted Gonzalez-Sanchez. Webster got out of the car with Blackwell’s gun in his pocket and approached Gonzalez-Sanchez with the intention of robbing him. He said he had brought the gun along as “back up” because GonzalezSanchez “was big.” Gonzalez-Sanchez saw Webster approaching and “act[ed] like . . . he was going to attack” him. When Webster pulled out the gun, Gonzalez-Sanchez surrendered, complying with Webster’s order to lie on the ground. Webster took GonzalezSanchez’s wallet from his back pocket and looked through it, but found nothing worth taking. He claimed that he did not see or steal Gonzalez-Sanchez’s cell phone.

Webster left the wallet on the ground and began walking away, scared and shaking. Gonzalez-Sanchez remained on the ground, and said something to Webster in Spanish. Webster said that this “really [made him] nervous.” Webster testified that he had walked about 5 feet away when suddenly, “something . . . forced [him] to stop” and “a demon jumped into [him]”—in other words, “something like a spirit came through [his] body.” Webster then turned and shot Gonzalez-Sanchez three times. He described the incident as “a robbery that went wrong.”

Mr. Webster said that the state had presented insufficient evidence to prove that the killing of Mr. Gonzalez-Sanchez occurred while he was attempting to commit an aggravated robbery.  Mr. Webster said that it had been the "spirit" that had come through him that caused the killing so he hadn't killed him "while" the robbery was going down.  Justice McKeig doesn't think too much of this theory. This is because, in part, after the killing Mr. Webster's homie, Mr. Blackwell, went back to check the body one last time for anything of value that could be taken, so technically, the robbery was still ongoing.

Mr. Webster also complained about the standard jury instructions for felony murder.  Because he did not object to the instructions the court reviews this under "plain error" analysis.  The court can't find that any error was "plain":  

Here, the district court instructed the jurors that the fourth element of the felony murder offense required that “at the time of causing the death of [Gonzalez-Sanchez], the defendant was engaged in the act of committing or attempting to commit the crime of aggravated robbery.” This instruction is consistent with the standard jury instruction set forth in the Criminal Jury Instruction Guide. 10 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 11.09 (6th ed. 2015). Moreover, the instruction does not contravene existing case law. We have never held that a district court is required to include language requiring a causal relationship between the felony and the killing in the jury instructions on first-degree felony murder. Thus, like the error alleged in [State v. ]Milton, 821 N.W.2d [789 (Minn. 2012) at 807, we conclude that the alleged error in this case was not plain.

Neither Newly Discovered Evidence Nor Ineffective Assistance of Counsel Claims Enough For New Trial

Mosley v. State, Minn.S.Ct., 4/26/2017.  A jury convicted Mr. Mosley of first degree murder, which the supreme court affirmed a couple of years back.  Mr. Mosley alleged in this post conviction petition that he was entitled to a new trial based upon newly discovered evidence of five signed affidavits from alibi witnesses; he also said that both trial and appellate counsel had provided ineffective assistance of counsel.  The affidavits generally said that Mr. Mosley was in St. Louis at the time of the homicide. Justice McKeig affirms the post conviction court's summary denial of this claim, saying that it appeared that defense counsel knew of two of the claims and the other three were cumulative of the alibi testimony that had been presented at trial.  On the performance of counsel, it's pretty much the same; even had counsel found more alibi witnesses it wasn't likely to have changed the outcome of the trial.  That being the case, appellate counsel did nothing wrong in not accusing trial counsel of being ineffective.

Wheels on the bus just go round and round.

Court Expands Sweep of Assault-Harm to Include All Volitional Acts

State v. Dorn, Minn.S.Ct., 12/7/2016.  Ms. Dorn pushed D.E. when he accused her of being a drug dealer.  It wasn't a hard push; he may have just sort of leaned back then returned to the upright position, like those air-inflated Christmas decorations.  Ms. Dorn then pushed * again.  Still not a hard push but this time D.E. lost his balance, may have stumbled and fell into the embers of a nearby bonfire. The state charged Ms. Dorn with assault in the first degree - D.E.'s injuries met the definition of "great bodily harm - and a jury convicted her.  The judge put her on probation forever instead of sending her to prison.  The court of appeals affirmed the conviction.

Ms. Dorn said what she did wasn't an assault because she didn't intentionally harm D.E. and because her actions did not directly cause D.E.'s injuries.  She said that the statute required proof of some intent to harm D.E.  Justice McKeig rejects this assertion. Assault/harm requires that an individual assault another and inflict great bodily harm.  "Assault" in this instance means the intentional infliction of bodily harm upon another. 

Now, Minnesota's assault statute has always been incredibly broad; it is now breath takenly so.  Justice McKeig has replaced the supposed mental state required of criminal assault - intentional infliction of bodily harm - with any volitional act upon another person.  If that volitional act results in a common law "battery" - the intentional application of unlawful force against the person of another - then the assault statute's requirements are met.  The extent of injury then determines the degree of assault that has been committed.  This is so even when, apparently, the resulting harm from the battery is totally unwitting.  Mischiefly the Justice offers absolutely no guidance on what the outer limits - if, indeed, there are any - of this sweeping expansion of the assault statutes may be. So the next time you think about giving a colleague a congratulatory slap on the back for a job well done, reconsider, because you've just committed a criminal assault. If your colleague isn't paying enough attention, stumbles back and hits her head on, say, a concrete wall, you're off to prison for a felony assault.