Justice Paul Anderson Court Festival

6/11/2013:  Until yesterday I had believed that I had posted this announcement about the multitude of opinions that came out of the Supreme Court on Justice Paul Anderson's last day on the court.  Here's what I wrote (and some may have actually seen if you have a blog feed of some sort).

5/31/2013:

Justice Paul Anderson’s last day on the court was this past Friday.  There were a slew of opinions.  It seemed, though, that the remaining justices were more keen on showing Justice Anderson the door rather than bidding him a fond farewell.  The opinions in which the Justice was not in the majority excoriated him in lengthy footnotes.  Justice Anderson gave as good as he got. Anyway, it may take a few more days to work through the five criminal opinions.

Murder Conviction Upheld Over Fourth Amendment And Evidentiary Ruling Challenges.

State v. Zornes, Minn.S.Ct., 5/31/2013.  A jury convicted Mr. Zornes of two counts of first degree premeditated murder.  There was an arson conviction in there somewhere as well.  Once Mr. Zornes became a suspect and the police knew where he was, they arrested him out in the woods at his campsite.  In a pat down search of Mr. Zornes, the police found a folding knife.  Strewn about the campsite, they found a hammer, a screwdriver, a utility knife and a scissors.  At the police station, Mr. Zornes invoked his right to remain silent.  In the course of “processing” Mr. Zornes – looking for injuries, taking photos and the like – the officers told him that they were going to use a sexual assault kit to take DNA samples from him.  Mr. Zornes grumbled about this, remarking “this wasn’t anything sexual” or “it wasn’t sexual related.”  Several hours later, the cops got a search warrant for the DNA collection.

Mr. Zornes moved to suppress the evidence obtained from him during the campsite arrest and search; to suppress the results of the DNA testing at the police station; and to suppress the “this wasn’t anything sexual” statement.  Mr. Zornes argued that the stuff seized at the campsite was not sufficiently connected to the crime scene and were thus not relevant.  The trial court allowed the introduction of these things, concluding that what to make of them was the jury’s job not his.  The supreme court agreed, saying that admission of these items had not been an abuse of discretion.

The trial court threw out the DNA testing, saying there was no reason not to have first got the warrant that they got three or so hours afterwards.  No one took issue with that on appeal.  But, the trial judge admitted the statement, saying that Mr. Zornes had made the statement before the cops physically touched him to get the DNA exemplar so the statement had not been the result of the unlawful search to acquire the DNA exemplar.  Justice Paul Anderson, writing for the Court, said that the court didn’t have to decide any of this because any error in admitting the statement was harmless beyond a reasonable doubt. 

During jury selection, the trial court asked two persons, both on a combined witness list, to leave the court room, although one of them was allowed to watch from an observation room.  Mr. Zornes complained about this on appeal, saying that the trial court had deprived him of his right to a public trial.  because jury selection is part of the trial process, a trial judge has substntial discretion whether to exclude a potential witness from the court room.  As to the fellow in the observation room, the state agreed to remove him from the witness list so at that point he became “the general public.”  Under the factors identified in State v. Lindsey, 632 N.W.2d. 652 (Minn. 2001), the court concluded that this second individual, excluded from the court room to observation room, was too trivial an exclusion to implicate Mr. Zorne’s Sixth Amendment right to a public trial.

Finally, the court upheld the trial court’s ruling on impeachment of Mr. Zornes by use of prior convictions, under the Jones factors.

Because Defendant Alleged Sufficient Facts to Warrant Evidentiary Hearing, the Post Conviction court Abused its Discretion When it Denied the Petition Without a Hearing

State v. Nicks, Minn.S.Ct., 5/31/2013.  A jury convicted Mr. Nicks of the first degree murder of Johanna Hollis, and of the attempted first degree murder of her daughter, A.R.  The state’s case turned in large part on certain cell phone records that indicated that Mr. Nicks was in the vicinity of the shooting, and supported the claim made by two witnesses that Mr. Nicks had made threats to Hollis on the night of the murder.  These records show that he placed two calls to Hollis’s cell phone, but Mr. Nicks insisted that these calls went to voicemail, that he did not speak with Hollis that night, and that there were no threatening calls between Hollis and him.  Trial counsel sought the Hollis cell phone records but it does not appear that counsel got them.

Appellate counsel had a forensic expert examine Hollis’s cell phone.  This examination, Nicks alleged in his post conviction petition, revealed that Hollis could not have received the alleged threatening phone calls from Nick’s phone.  The post conviction court denied Nick’s petition without a hearing upon receipt of this information.  Mr. Nicks appeals directly from the trial and from the denial of post conviction relief, primarily asserting that trial counsel provided ineffective assistance as a result of not getting the cell phone records and conducting a forensic exam of Hollis’s phone.

Justice Paul Anderson concludes that Mr. Nicks is entitled to an evidentiary hearing on his ineffectiveness claim.  Obtaining Hollis’s cell phone records, rather than being a course of action that counsel considered and rejected, was a central part of his theory of the case and his strategy at trial.  It was hardly a “strategy” that remains unreviewable under Strickland.  When counsel fails to conduct a thorough investigation of facts that are so directly related to the theory of the case, that conduct falls below an objective standard of professional conduct that defendant’s are entitled to under the constitution.  Regardless whether counsel’s performance actually fell below this standard is not the question when deciding whether to grant an evidentiary hearing; rather, the question is whether the allegations conclusively fail to show such a fall.   

Chief Justice Gildea and Justice Dietzen dissented.

The permanent links to Friday’s opinions are not up yet; check back in a day or two.

Destruction of Blood Exemplar After Defense Demand to Preserve it Does Not, Alone, Support Suppression of Evidence of Testing of That Exemplar

State v. Hawkinson, Minn.S.Ct., 4/24/2013.  This case comes up from the court of appeals, read here, and asks whether the trial court can properly exclude alcohol content test results for the sole reason that the exemplar is destroyed after the defense files a demand to preserve it.  The short answer is, no.

The court of appeals had concluded that the destruction of the exemplar following a defense demand to preserve it was a due process violation that did not require a showing of bad faith.  Justice Paul Anderson, writing for a six member court, disagrees.  If the destroyed exemplar has apparent and material exculpatory value then its destruction violates due process, regardless of bad faith.  That’s a Brady v. Maryland, 373 U.S. 83 (1963) violation.  If not, then Mr. Hawkinson still has to establish, notwithstanding the preservation demand,  that the “potentially useful evidence” was destroyed in bad faith.  The court concludes that the exemplar does not qualify as Brady” material.  As to bad faith, the court concludes that the state had not destroyed the exemplar so as to hide favorable evidence; and that because the destruction had occurred in accordance with the applicable retention policy and schedule, there was no bad faith.  That the destruction occurred following Mr. Hawkinson’s demand to preserve it does not, by itself, relieve Mr. Hawkinson of showing bad faith.  Rather, that demand is but an additional factor to consider in the bad faith determination. 

When the court looked at the preservation demand, it turned out that the destruction was all Mr. Hawkinson’s fault.  His demand was too vague: he requested that the “blood tests” be preserved; the court could not decide whether this was a request for just the test or also the exemplar.  His demand did not specify the date of the exemplar (was there more than one?).  Next, the demand was “in a long string of boilerplate requests, many of which were inapplicable to this case.”  Next, Mr. Hawkinson’s attorney took no further action to preserve the exemplar after being notified that it was to be destroyed twelve months hence.  Last, counsel conceded that he had no intention to use or retest the exemplar.

Mr. Hawkinson also made a Crawford confrontation claim, which the court rather summarily dismisses.  After, the right of confrontation is the ability to cross examine witnesses, not go over to the evidence room and rummage through exemplars and other physical items. 

His last challenge invoked the discovery rules of criminal procedure.  While it’s correct that in gross misdemeanor and felony cases the state must allow defendants to conduct their own “reasonable” testing of physical evidence, Minn.R.Crim.R. 9.01, subd. 1(4)(b), that obligation does not extend to misdemeanors.  Rule 9.04 only obligates the state to allow a defendant who is charged with a misdemeanor to inspect the police investigatory reports and Brady material.  Any other disclosure has to be by motion to the court.   The charges against Mr. Hawkinson were misdemeanors, and he did not seek a court order for additional discovery.  (Apparently, his demand of the state did not count.)  In essence, the court does not say what, if any, remedy under the rules may be available in gross misdemeanor and felony cases.  It seems unlikely, however, that the court would apply the rules in isolation from the due process analysis the court utilizes here.

Post Conviction Petition Makes Insufficient Showing of “Newly Discovered Evidence”; and Does Not Establish Statutory Basis For New DNA testing

Fort v. State, Minn.S.Ct., 4/17/2013.  The court continues its unrelenting dismantling of the post conviction statute, this from a state that was one of the first states to enact a post conviction statute back when the U.S. Supreme Court seemed to say that one was constitutionally required. Two thirds of the courts opinions this year have been reviews of post conviction petitions.

The bare facts:  On December 15, 1990, someone broke into the home of eleven year old Marcus Potts, and stabbed him forty-four times, causing his death, read more here.  A jury found Mr. Fort guilty of first degree premeditated murder.

Mr. Fort filed this post conviction petition alleging newly discovered eyewitness testimony which he claimed buttressed his alternative perpetrator theory; and requesting another round of DNA testing on an exemplar found at the crime scene.  The post conviction court summarily denied the petition; that court said that Mr. Fort had not meet the requirements for receiving an evidentiary hearing on a claim of newly discovered evidence.

Now, a brief detour:  while the jury was deliberating someone called Mr. Fort’s attorney and said that P.R. had confessed to the murder.  The trial court heard testimony on this confession after which it denied Mr. Fort’s request for a new trial.  This go round, Mr. Fort produced an affidavit from A.Z.  Z. said that he had been with both Mr. Fort and P.R. on the evening of the murder, that he had last seen Mr. Fort at 10:15 p.m. and had last seen P.R. at 11:25 p.m.  In addition. Z said that the day after the murder P.R. told Z about the murder and that P.R. “seemed shook up” about it.  The post conviction court said that Z’s affidavit, even if true, did not contain direct evidence of Mr. Fort’s guilt or innocence.

The court uses a four part test to consider claims of newly discovered evidence.  Rainer v. State, 566 N.W2d 692 (Minn. 1997).  The very first part asks whether Mr. Fort or his lawyer knew of this evidence.  Oops.  Z’s affidavit says that he was with both P.R. and Fort so Justice Paul Anderson concludes that Mr. Fort had to have known of this evidence for lo these many years, back to the night of the offense.  This alone would have supported denial of the petition but the Justice goes on to conclude that he hadn’t met any of the four parts of the test. 

Mr. Fort also sought to have an exemplar taken from a smear (of some sort) found at the murder scene tested for DNA.  There had been testing of the exemplar already.  Testing a year after the murder, in 1991, showed that the exemplar contained blood but no other identification could be made.  In 2007 there was an attempt to retest this exemplar with new DNA technology but the sample “was found to be either nonexistent or too small to test.”  The practicalities aside, in his petition Mr. Fort did not claim that thee was any newer DNA technology available that would make testing either possible or practicable.  The post conviction statute that authorizes DNA testing requires a showing that the exemplar was not subject to testing because, in this case, the technology for testing wasn’t available.  Minn.Stat. 590.01, subd. 1a.  Since Mr. Fort didn’t even allege such new technology he is not entitled to the testing.

Insufficient Proof to Submit Accomplice Testimony Instruction to Jury

State v. Cox, Minn.S.Ct., 9/19/2012.  A jury convicted Mr. Cox of first degree felony murder, second degree intentional murder, and being a prohibited person in possession of a firearm – all for the shooting death of a cab driver, James Moody.  The trial court entered convictions on all three verdicts, and sentenced Mr. Cox to life imprisonment on the first degree felony murder conviction, and to a concurrent sixty month sentence on the gun count.  The trial court did not sentence Mr. Cox on the second degree intentional murder conviction.

This was a retrial following a reversal on a Crawford error.  Read about that here.  Here’s how I described the facts the first time around:

A jury convicted Mr. Cox of the shooting death of a cab driver.  Mr. Cox, a Mr. McIntyre, and S.T. had been hanging out earlier in the evening at a local bowling alley, after which the three of them went to S.T.’s apartment complex.  Police searched S.T.’s apartment where they found a gun; some of the cartridge casings found at the homicide scene were fired by this gun.  Midway through trial, S.T., who was under subpoena, told the prosecutors that she was afraid to testify for fear of harm to herself or her child.  In response, the state asked to introduce her grand jury testimony as substantive evidence.  Her grand jury testimony incriminates Mr. Cox.

This time around Mr. Cox complained that the trial court should have given an accomplice testimony instruction as to S.T., whose name we now know to be Shemica Thomas.  Ms. Thomas testified about Cox and McIntyre returning to her place after she heard gunshots outside and about seeing the guys with their guns.  Mr. Cox thought that she was an accomplice based on these assertions:

Thomas was with Cox and McIntyre immediately before and after the shooting, frequently called cabs to the 3911 building even though she did not live there, had used the Omaha cell phone to make calls that weekend because her own phone had been shut off, had little to no money, and lied to the police following the shooting.

Justice Paul Anderson, writing for the court, rejects this contention.  He writes that there was no evidence that Ms. Thomas knew that Cox and McIntyre planned even to rob Mr. Moody much less shoot him, no evidence that she was present during the shooting, no evidence that she participated in the shooting, and no evidence that she encouraged the shooting. 

Mr. Cox also complained about an “Allen” charge that the trial court gave to the jury when it announced that it had reached a verdict on two of the three charges and asked what would happen if they were unable to agree on the third charge.    The court rejects this argument, concluding that the trial court had not instructed the jury that it had to reach verdict but had only told them that it was requiring them to continue deliberations only at that point to see if a verdict can be reached.  Justice Anderson concludes that this charge was unlikely to cause the jury to believe that it was required to reach a verdict.

Finally, the court vacated the second degree intentional murder conviction because it is a lesser included offense of the first degree conviction.

Jury Instruction on Aiding and Abetting Must Explain that Defendant Must Know That Accomplice Was Going To Commit a Crime, and That Defendant Intended His Presence or Actions to Further The Commission of that Crime.

State v. Milton, Minn.S.Ct., 9/19/2012.  Back on January 2, 2010, Minneapolis police officers, responding to a 911 call, found Dontae Johnson lying face down in the snow beside a van, dead from multiple gunshot wounds.  Officers found a bunch of cash in Mr. Johnson’s pants and wallet, and they found four 9 mm spent shell casings.  C.W., apparently a friend of Johnson’s, told the police that Johnson had called his “cousin” to sell him some weed, and that when a car pulled up shortly thereafter C.W. assumed that the driver was the “cousin.”  C.W. also said that a a truck also arrived the same time as the “cousin.”  The driver of the truck got out; C.W. said that he was dressed in black, including a black hoodie, black jeans and a black mask.  This fellow also had a gun in his left hand.  The driver of the truck demanded Johnson’s weed and money all the while referring to the truck driver as either his “cousin” or “family;” when Johnson tried to run the driver shot him.

The police obtained Johnson’s cell phone records.  Mr. Johnson made and received calls right before the shooting to T.C, Mr. Milton’s brother.  A different set of officers went looking for Mr. Milton and found him at a duplex in north Minneapolis.  One officer, waiting in back in case anyone came running out the door, saw two shell casings on the platform of a stairway leading to both units,including up to Mr. Milton’s back door.  This officer grabbed those shells, even though she didn’t have a search warrant.  The crime lab determined that these shell casings had been fired from the same gun that had fired to casings found at the crime scene.  Mr. Johnson eventually admitted that he had been present at the shooting but that he had not been the shooter.

A jury convicted Mr. Milton as a principal and as an accomplice of  first degree felony murder and of attempted first degree felony murder.  The trial court sentenced him to concurrent prison terms of life and 220 months.  Mr. Milton argued on appeal, as he had at trial, that the police had unlawfully seized the shell casings off his stairway.  The trial court had concluded that the officer had found the casings “in plain view” at a location where she was authorized to be.  Justice Paul Anderson, writing for a unanimous court, concludes first that the officer was in the common area of the duplex – the stairway that provided access to both levels of the duplex, including the upstairs unit – and that this common area had a diminished expectation of privacy because those areas are not subject to the exclusive control of one tenant and are utilized by tenants generally.  State v. Krech, 403 N.W.2d 634 (Minn. 1987).  Justice Anderson next answers the question, what made it readily apparent that  these shell casings incriminating in nature?  Well, the long and the short of it is:  because they are shell casings “found discarded near a multifamily residence within city limits.”  So, pretty much any shell casings that a metropolitan cop comes across can be seized without a warrant unless the accused can persuade a judge otherwise.  Shell casings “may be useful” as evidence of crime, forget about being readily apparent contraband.  Justice Anderson did provide some solace by inclusion of this footnote:

We note that our conclusion in this case is driven by the fact that Milton resides in a multifamily residence. Additionally, we do not decide whether the upper part of the stairway leading from the platform to Milton’s upper-level residential unit—on which no shell casing was found, and which may not be visible from the shared platform—is curtilage.

The police had also found two other shell casings in Mr. Milton’s truck.  Even though the state had agreed not to introduce these shell casings – the officer who had found them was dead so there was a potential confrontation problem – instead the prosecutor, in an amazing sleight of hand, told the jury in opening statement that because the officer who had searched the truck was dead the jury would not hear what the officer had found, but that they would hear another officer’s repeated confrontation of Mr.  Milton about the casings that had been found in the truck!  Well, there wasn’t any real objection to this so it’s plain error if at all. Justice Anderson concludes that no error occurred, and to cover himself also concludes that if there were error it wasn’t plain.

Finally and most significantly, Mr.. Milton complained about the aiding and abetting instructions, to which defense counsel had made no objection, so, again, it’s plain error if any at all.  Here’s the instruction on first degree felony murder:

The elements of murder in the first degree are as follows: First, the death of Dontae Johnson must be proven.

Second, the defendant or a person whom the defendant intentionally aided caused the death of Dontae Johnson.

Third, the defendant, or a person whom the defendant aided, acted with the intent to kill Dontae Johnson. To find the defendant had an intent to kill, you must find that the defendant acted with the purpose of causing death or believed that the act would have that result. Intent, being a process of the mind, is not always susceptible to proof by direct evidence. It may be inferred from the all the circumstances surrounding the event. It is not necessary that the defendant—that the defendant’s act be premeditated.

Fourth, at the time of the act causing the death of Dontae Johnson, the defendant, or a person whom the defendant aided, was engaged in the act of committing or attempting to commit the crime of aggravated robbery . . . .

This instruction is wrong because it fails to properly explain the element of “intentionally aiding” to the jury.  The instruction does not explain to the jury that Mr. Milton had to have known that his alleged accomplices were going to commit a crime, and that he intended his presence to further the commission of that crime.  This is a new requirement and so the error is neither clear nor obvious.  However:

we take this opportunity to emphasize that an accomplice liability jury instruction must explain to the jury that in order to find a defendant guilty as an accomplice, the jury must find beyond a reasonable doubt that the defendant knew his alleged accomplice was going to commit a crime and the defendant intended his presence or actions to further the commission of that crime.

Here’s the instruction on the attempted murder in the first degree:

The elements of attempted murder in the first degree are, first, the defendant or another person with the defendant -- whom the defendant aided attempted to cause the death of [C.W.].

Second, the defendant acted with intent to kill [C.W.]. To find the defendant had an intent to kill, you must find that the defendant or a person whom the defendant aided acted with the purpose of causing death, or believed that the act would have that result.

Intent, being a process of the mind, is not always susceptible to proof beyond—to proof by direct evidence but may be inferred from all circumstances surrounding the event. It is not necessary that the act of the defendants or the act of the person whom he aided be premeditated.

Third, at the time of the attempt to cause the death [of] [C.W.], the defendant or a person whom he aided was engaged in the act of committing or attempting to commit the crime of aggravated robbery.

This instruction is also wrong, because it left out the “intentionally aiding” element of accomplice liability all together.  This is plain error, but id did not affect Mr. Milton’s substantial rights.

No Ineffective Assistance of Appellate Counsel

Jackson v. State, Minn.S.Ct., 8/1/2012.  A jury convicted Mr. Jackson of multiple counts of homicide.  The Supreme Court affirmed his conviction.  For the facts and the direct appeal, go here.  Mr. Jackson eventually got around to filing a state post conviction petition, alleging that appellate counsel had provided ineffective assistance of counsel.  The post conviction court denied the petition summarily and Mr. Jackson appealed that denial to the supreme court.

Justice Paul H. Anderson, Jr. affirms the post conviction court for a unanimous court.  Mr. Jackson had asserted in his petition that appellate counsel had not properly raised objections to the introduction of evidence that the state had introduced to prove that he had committed the crimes for the benefit of a gang.

First, Mr. Jackson said that appellate counsel had been ineffective by failing to argue that the trial court had erred by admitting the gang affiliation evidence.  Mr. Jackson conceded that appellate counsel had argued that the admission of this evidence had been unfairly prejudicial.  His point was that appellate counsel should separately have argued that the admission of this evidence was error on its own.  Justice Anderson ducks this issue by concluding that Mr. Jackson could not show that he was prejudiced by this alleged omission by appellate counsel; the Justice said that the court would have affirmed his conviction in any event.

Second, Mr. Jackson said that appellate counsel had been ineffective by failing to argue that the admission of the gang affiliation evidence violated his due process rights.  Appellate counsel had argued, Mr. Jackson again conceded, that the admission of this evidence had been unfairly prejudicial but counsel did not specifically claim a due process violation.  Once again, the court said that Mr. Jackson could not show prejudice by this alleged error so there was no need to decide if there were an error.

Third, Mr. Jackson said that appellate counsel had failed to preserve any federal constitutional claims, with the result that he could not pursue a federal habeas claim.  The court says that there is no duty of appellate counsel to raise federal constitutional issues to a state appellate court “simply to preserve those issues for federal habeas review.”  Rather, appellate counsel has the discretion to argue “only the most meritorious claims.”  Nunn v. State, 753 N.W.2d 657 (Minn. 2008).  Justice Anderson backtracks from that (at least embarrassing) assertion – how hard is it to throw in, “and it violates due process, or something in the constitution” – by also saying that, again, Mr. Jackson doesn’t point to a specific constitutional claim that appellate counsel unreasonably failed to raise and then demonstrate just how that failure prejudiced him.  More troubling is that the court’s ambivalent reliance on Nunn – did appellate counsel’s failure to raise a claim of prosecutorial misconduct create a reasonable probability that the outcome of his direct appeal would have been different – suggests that the court doesn’t seem concerned about what the federal court would have done with Mr. Jackson’s federal issues had they been preserved for federal habeas review.

Unless There’s Foot Dragging, Award of Jail Credits Is Determined From Date on Which State Has Probable Cause and Sufficient Evidence to Potentially Convict a Defendant.

State v. Clarkinhttp://www.lawlibrary.state.mn.us/archive/supct/1208/OPA101286-0801.pdf, Minn.S.Ct., 8/1/2012.  This is the jail credits case from the court of appeals.  Read here.    Justice Paul Anderson affirms the court of appeals, but does so on different grounds.  The court also upends what was thought to be well settled precedent that says jail credits accrue from the date on which the state had probable cause to have charged out the offense.

In April 2008, Mr. Clarkin gets released from prison after serving a sentence for second degree assault against his former girlfriend.  One of his parole terms was to stay the hell away from girlfriend.  On July 8, 2008, girlfriend discovered that someone had spray painted her house, garage and a motorcycle parked in the driveway ;she believed that Mr. Clarkin was the artist.  On July 11, 2008, girlfriend’s daughter saw Mr. Clarkin in the backyard of girlfriend’s home.  On July 12, 2008, girlfriend’s Dad discovered that someone had spray painted his house, in a style nearly identical to the style of the July 8 spray painting; Dad also believed that Mr. Clarkin was the artist.

On July 13, 2008, police arrested Mr. Clarkin, but not for the spray painting.  Rather, they arrested him for violation of some other term of his parole having nothing to do with painting.  The police found two spray paint cans at the arrest location.  The police did ask him about the spray painting incidents, but Mr. Clarkin denied being the artist responsible for them.  Mr. Clarkin remained in custody through February 19, 2009.

During which the spray painting stopped.  It resumed, however, in April, and continued through November 6, 2009 at the homes of girlfriend, girlfriend’s dad, girlfriend’s brother, and girlfriend’s place of employment.  The police concluded that the spray painting in all of these places was nearly identical with each other and with the spray paintings from back in 2008.  Finally, in November, 2009, the state charged Mr. Clarkin with some of the spray paintings as harassment/stalking charges.  Eventually, the state charged him with all of the spray painting events as well as several OFP violations.  Mr. Clarkin entered a guilty plea to a single count as part of a deal under which he would receive a 35 month executed sentence.  At sentencing Mr. Clarkin said that he was entitled to the 231 days of jail credit from July 13, 2008 until February 19, 2009, because the state had probable cause to charge him then.  The state countered that these days were served for a parole violation, and that the state did not have probable cause to arrest him on the spray painting incidents until his arrest in December 2009.

The court of appeals had said that the sentence was presumptively consecutive so no jail credits regardless of the probable cause issue.  Justice Paul Anderson concludes that because a concurrent sentence would be longer than a consecutive one, a concurrent sentence is the presumptive sentence.  As a result, Mr. Clarkin is not, on this basis, ineligible for the jail credits that he was seeking.

He is, however, ineligible for those credits.  The court rejects adoption of a probable cause test to determine the award of jail credits.  The court is afraid that this will result in premature charging when the state lacks sufficient evidence to obtain a conviction.  Rather, the test is when did the investigation produce a sufficient amount of evidence to charge (probable cause)  and potentially convict a defendant?  Here’s the rule:

We conclude that an award of jail credit is appropriate for time spent in custody after the date when (1) the State has completed its investigation in a manner that does not suggest manipulation by the State, and (2) the State has probable cause and sufficient evidence to prosecute its case against the defendant with a reasonable likelihood of actually convicting the defendant of the offense for which he is charged.

Justices Meyer and G. Barry Anderson would have adopted the probable cause standard but concluded that Mr. Clarkin was not entitled to the jail credits under that standard either.

Court Gives Officers an Effective Green Light to Ask Routine Questions About Contraband or Weapons in Cars During Routine Traffic Stops

State v. Smith, Minn.S.Ct., 6/6/2012.  Following a traffic stop for speeding and no seat belt, officers found a pistol in the car for which Mr. Smith did not have a permit.  this 5-2 opinion will make it harder, if not nearly impossible, to challenge an officer’s expansion of routine traffic stops by questions about the presence of either contraband or weapons in the car.

  Two state patrol officers – one a trainee and the other his minder - clocked Mr. Smith, who was not wearing a seat belt, doing 77 miles per hour in a 65 miles per hour zone in his Chevy Camaro.  Mr. Smith actually stopped his Camaro before the troopers signaled him to do so.  Trainee trooper chatted up Mr. Smith while minder trooper sat in the patrol car listening by means of a wireless radio signal.  Trainee trooper asked the standard question, “Do you know why you were stopped,” and Mr. Smith gave the correct answer, “No, I don’t.”  Trainee trooper asked for Mr. Smith’s license and proof of insurance.  Mr. Smith produced his license but said he had just switched insurance carriers and didn’t have the new card.  At this point minder trooper came over to join the conversation.

Minder trooper asked why Mr. Smith had pulled over if he didn’t know why he got stopped.  Mr. Smith said he needed to enter an address into his GPS as he was travelling from Illinois to meet someone in St. Paul.  Minder Trooper thought that Mr. Smith was shaking “very violently;”  Mr. Smith said this was from an undiagnosed medical condition that he’d had all his life.  Minder trooper didn’t believe that and assumed that the shaking was due to nervousness.  Minder trooper also saw a box of ammunition partially covered with debris on the floor in the backseat.

At this point Trainee and minder trooper conferred;  minder trooper thought that Mr. Smith was up to something criminal.  Minder trooper instructed trainee trooper to return to the car, ask Mr. Smith for his middle name, and ask him if he had anything illegal or any weapons in the car.  Trainee trooper did this and Mr. Smith coughed up a pistol for which he did not have a permit.  Neither trooper found any illegal contraband in the car, minder trooper agreed that Mr. Smith had been cooperative and that his driver’s license was valid.

Mr. Smith complained that by asking  him whether he had anything illegal or any weapons in the car the troopers expanded the scope of the traffic stop without reasonable suspicion of criminal activity, making the seizure of the pistol illegal. 

Start with State v. Askerooth, 681 N.W.2d 353 (Minn. 2004).  There, the court said that to remain constitutional, an intrusion not strictly tied to the circumstances that rendered the initiation of the stop permissible must be supported by at least a reasonable suspicion of additional illegal activity.  Each “incremental intrusion” during the stop must be tied to and justified by one of the following:

(1) the original legitimate purpose of the stop, (2) independent probable cause, or (3) reasonableness, as defined in Terry [v. Ohio].

Mr. Smith’s challenge was to the scope of the stop, not its duration.  Here, the Justice Paul Anderson, writing for five members of the court, assume without deciding that trainee trooper’s question about having either contraband or a weapon in the car did expand the scope of the stop, rejecting the state’s argument that a single question can never expand the scope of a traffic stop.  Justice Anderson concludes that Mr. Smith’s “extreme shaking” and what the majority decided to characterize as his “evasive response” about the etiology of his shaking provided the officers with reasonable, articulable suspicion to support this assumed expansion of the scope of the traffic stop.  While nervous behavior by itself likely would not support this expansion – see the cases cited in the opinion - here it was the nervousness and shaking alongside his evasive explanation of the shaking that sealed Mr. Smith’s fate.

Justice Page, joined by Justice Meyer dissented.  Justice Page rejected the majority’s characterization of Mr. Smith’s answer about the etiology of the shaking as “evasive.”  Further, the dissent accused the majority of ignoring if not rejecting past opinions - e.g., State v. Burbach, 706 N.W.2d 484 (Minn. 2005) –that have held that even an unusual degree of nervousness has not  provided a reasonable, articulable suspicion of criminal activity to support an expansion of the scope of a routine traffic stop.

New Trial Ordered Because of (a) Third Party Bullying of Defense Experts, and (b) Ineffective Assistance of Trial Counsel

State v. Beecroft & Beecroft v. State, Minn.S.Ct., 5/23/2012.  A badly splintered supreme court has granted Ms. Beecroft a new trial reversing her conviction of first degree premeditated murder of her just born baby and vacating her sentence of life with possibility of parole.  In doing so the court could not muster a majority opinion to support this laudable result.  Ms. Beecroft’s plight has been in the news practically since the prosecution began but most certainly since the bullying of defense experts by James Backstrom, the Dakota County Attorney – an office that was not prosecuting Ms. Beecroft – came to light.  Mr. Backstrom had been leading the charge in a campaign to prevent medical examiners from ever testifying for the defense on the theory that such behavior was a “conflict of interest.”  Mr. Backstrom was apparently totally unaware of a state statute, Minn.Stat. 390.251, which authorizes medical examiners to perform physical examinations or tests incident to any matter of a criminal nature “when requested” by a publicly appointed criminal defense attorney.  The Minnesota County Attorneys Association, in which Mr. Backstrom has been an active member, including its president, supported recent revisions to this statute.

Ms. Beecroft, then seventeen,  apparently hid her pregnancy and then gave birth alone and unaided.  The state alleged that she then immediately inflicted many stab wounds upon the just born baby.  Whether the baby was alive at the time of the stabbing became the mother of all “battle of the experts.”  The state said, yes; the defense said, no.

The state presented four experts, two in its case in chief and two more in rebuttal, all of whom opined that the baby had been born alive and had died of multiple sharp force injuries.  Sandwiched in between the state’s two pairs of experts the defense presented two experts –Anoka County Medical Examiner Dr. Amatuzio and former chief medical examiner from Suffolk County, New York Dr. Wetli -  both of whom opined that the baby had not been alive at the time of the stabbing. 

The defense had intended calling a third expert, Dr. Susan Roe, then an assistant medical examiner for Dakota County.  Dr. Roe had also agreed to serve as the defense’s in-court observer of the testimony of other experts to assist defense counsel both in cross examining the state’s experts and in preparing the defense expert’s testimony.  The defense had also consulted with Dr. Janet Ophoven, a part time assistant St. Louis County Medical Examiner.    Dr. Ophoven’s opinion was that the baby had been still born.

Mr. Backstrom got wind of the planned testimony and consultation services of these defense experts, especially Dr. Roe, and complained to Dr. Roe’s boss, Dr. Thomas.  He threatened not to renew the contracts of both doctors should Dr. Roe testify for the defense, whether in Ms. Beecroft’s case or another.  Meanwhile the Anoka County Attorney’s Office also got wind of Dr. Amatuzio’s planned testimony , most likely from an assistant Washington County Attorney who doubled as counsel for the Minnesota Sheriff’s Association and in that capacity complained to Mr. Backstrom about the nerve of medical examiners testifying for the (Beecroft) defense.  The Anoka County Attorney’s office “suggested” that it would behoove Dr. Amatuzio to testify as a private physician rather than in her official capacity.  Dr. Amatuzio took that suggestion to heart, stating, emphatically one supposes although the opinion doesn’t say, that she was in the court room only as a private citizen as though she was just some doctor who wandered in off the street and into the courtroom having nothing better to do.  Without those credentials coming into the record the trier of fact – the judge here – was free to discount her opinions:  “well, after all, the state’s experts were all medical examiners so her opinion doesn’t quite stack up to theirs.  Dr. Roe, on the other hand, bailed out of the Beecroft case all together, fearing for her and her boss’s financial livelihoods.  She said that she would neither testify nor consult with defense counsel.  That left Dr. Ophoven, who had already told defense counsel that her employment contract forbid her from testifying for the defense, an employment clause that had been inserted into her contract in furtherance of Mr. Backstrom’s  campaign that such testimony would be a “conflict of interest.”  Dr. Ophoven reluctantly agreed to assume Dr. Roe’s consulting role but she adamantly refused to testify and defense counsel did not try to force her to do so.

The trial court convicted Ms. Beecroft of first degree premeditated murder and sentenced her to life without possibility of parole.  On appeal – direct appeal and appeal from denial of a post conviction petition – the central issue was whether the shenanigans of Mr. Backstrom and his cohorts in pressing this “conflict of interest” theory interfered with Ms. Beecroft’s right to present her own witnesses and the ability to consult with her own expert witnesses such that she should be given a new trial.   (The supreme court had already sanctioned Mr. Backstrom for these behaviors.  In re Backstrom, 767 N.W.2d 453 (Minn. 2009).

The plurality opinion –Justices Paul Anderson, Meyer and Page – concluded that there had been “substantial interference” with Ms. Beecroft’s aforementioned right to present her own witnesses as a result of the actions of Mr. Backstrom and Dr. Ophoven’s boss, Dr. Uncini.  This interference was error, but it did not, according to the plurality, affect Ms. Beecroft’s substantial rights.  Similarly, the plurality concluded that Mr. Backstrom, et.al. also interfered with Ms. Beecroft’s ability to consult with her own expert witnesses – Dr. Roe – but this interfere did not affect Ms. Beecroft’s substantial rights.

The plurality latches onto “interests of justice” to support granting Ms. Beecroft a new trial:

Beecroft’s right to present a complete defense was limited by the conduct of several state actors. The record before us demonstrates that this conduct was not isolated.  It appears instead that there is a widespread point of view among law enforcement officials, prosecutors, and perhaps other state actors that it is a “conflict of interest” for medical examiners to work with criminal defendants. Here, the conduct of state actors interfered with Beecroft’s ability to consult with and call expert witnesses. These mistaken efforts by state actors unquestionably interfered with the independence of medical examiners, contravened clear legislative intent, and risked undermining Beecroft’s constitutional rights; therefore, we conclude that we must exercise our supervisory powers and reverse Beecroft’s conviction in the interests of justice.

So, where to get that fourth vote and how?  The plurality picks up the fourth vote necessary to reverse the conviction from Justice G. Barry Anderson, who concluded that Ms. Beecroft’s trial counsel had been ineffective:

I conclude that defense counsel’s failure to act to defend Beecroft’s substantial and fundamental interest in a fair trial, when faced with government interference with potential defense witnesses and inappropriate third-party contact with the trier of fact, requires reversal and a remand for a new trial. Because I conclude that defense counsel’s failure to act was objectively unreasonable and Beecroft was prejudiced by defense counsel’s inaction, I concur in the plurality’s decision to reverse Beecroft’s conviction and remand for a new trial.

Chief Justice Gildea and Justice Deitzen dissented, concluding that “interests of justice” did not warrant granting a new trial, and that defense counsel had not been ineffective.  This dissent concluded that Mr. Backstrom, et.al. had not substantially interfered with Ms. Beecroft’s rights, or if he did it was harmless error.  Justice Stras agreed with this dissent except for the part about “interests of justice.”  Justice Stras concluded that because there was, in his opinion, neither error in nor prejudice from Mr. Backstrom’s bullying there was no need to invoke “interests of justice.”  He also  thought that without either error or prejudice that this concept was a bit to squishy to be utilized.

There is good language in the plurality opinion proclaiming the independence of medical examiners and the absolute necessity that the defense be on an equal footing with the state in access to experts.  Here’s but two of many examples:

Medical examiners must be allowed to complete their death investigations without
the interference, or the appearance of interference, by other state actors, including law enforcement officials and prosecutors. Law enforcement officials and prosecutors must respect the independence, autonomy, and neutrality of medical examiners. Law enforcement officials and prosecutors also have a duty to help ensure the vindication of a
criminal defendant’s constitutional right to the consulting and testimonial assistance of medical examiners.

and,

Section 390.251 recognizes that forensic science is not and should not become the sole province of the police and prosecutors. In the search for truth and justice, forensic science must be “equally available to law enforcement officers, prosecutors, and defendants.”NRC Report, supra, at 17 (emphasis in original). Likewise, medical examiners, in their role as forensic scientists, must not be beholden to the police and prosecutors. Instead, as independent public officials, medical examiners must be available to advise and assist publicly appointed defense counsel and to testify on behalf of criminal defendants. See Minn. Stat. § 390.251; see also Minn. Stat. § 611.21 (2010) (requiring a district court to authorize expert witness fees for indigent defendant if the court finds that the expert services are necessary). Today, we reaffirm what the law already mandates—medical examiners are independent public officials, free to make examinations on behalf of, submit reports to, consult with, and testify at the request of criminal defendants.

Mr. Backstrom has accepted the plurality’s repudiation of his “conflict of interest” crusade, announcing its abandonment (at least in Minnesota) as a result of this opinion.  Who knows.  If next month the U.S. Supreme Court extends Graham’s exclusion of life without possibility of parole to all juveniles who commit a homicide then Ms. Beecroft will have one less risk to face on retrial.