Admission Into Evidence of Report of Non-Testifying Radiologist Does Not Violate Confrontation Rights

State v. Andersen, Minn.Ct.App., 7/3/2017.  A jury convicted Mr. Andersen of assaulting his girlfriend, A.A.  He complained on appeal that the trial court had improperly admitted prior abuse testimony, and had improperly admitted the report of the radiologist, who did not testify, that confirmed the testimony of a physician's assistant that A.A. had a broken nose.  Here's how the court of appeals summed all this up:

A jury in an assault trial heard testimony that appellant Travis Andersen punched his girlfriend A.A. in the face and that he had previously assaulted her. A.A.’s treating physician’s assistant testified that she examined A.A.’s x-rays and concluded that A.A. suffered a broken nose, and the prosecutor introduced a radiologist’s report confirming that A.A.’s nose was broken. The jury found Andersen guilty. Andersen argues that the district court abused its discretion by allowing A.A. to testify about Andersen’s prior abuse and violated his constitutional right to confront witnesses by admitting the radiologist’s report. We affirm because the prior-abuse testimony was admissible relationship evidence and because the radiologist’s report was not testimonial in nature. 

A.A. testified that Mr. Andersen had once hit her in the face during an argument.  Mr. Andersen said that the trial court improperly admitted this prior abuse evidence because it was only relevant to establish whether A.A. alleges assaultive behavior and not that her allegations in this case were true.  This argument is a bit too nuanced for the court of appeals:

The testimony was not chiefly that A.A. alleged prior abusive behavior, but that Andersen had actually engaged in prior abusive behavior. Her testimony informed the jury of the nature of their relationship, the times that she felt afraid of Andersen, and the times that Andersen attempted to manipulate, control, and restrain her. This testimony has obvious probative value. 

Turning to the report of the non-testifying radiologist, Mr. Andersen relied on a slew of cases where scientific reports made during the course of a criminal investigation were held to be inadmissible under the Confrontation clause.  It's worth a lengthy extract to summarize these cases:

In Caulfield, the Minnesota Supreme Court determined that a Bureau of Criminal Apprehension laboratory report identifying cocaine was testimonial evidence that was admitted in violation of the appellant’s confrontation right. 722 N.W.2d at 306–07, 310. The court recognized that the “critical determinative factor” in determining testimonial nature is whether a statement was prepared for litigation. Id. at 309. It concluded that the report was prepared for litigation, bearing “characteristics of each of the three generic [Crawford] descriptions” because the report was akin to testimony, prepared at police request to aid in a prosecution, and offered into evidence to prove an element of the charged crime. Id

 In State v. Weaver, we held that laboratory results obtained during the course of an autopsy were testimonial. 733 N.W.2d 793, 799–800 (Minn. App. 2007), review denied (Minn. Sept. 18, 2007). The following facts were determinative: the test results were obtained at the medical examiner’s request during an autopsy that occurred during a homicide investigation; the doctor relied on the results in reaching a conclusion on the cause of death; the underlying information was relayed to the jury “in lieu of testimony” at the trial; blood samples were sent to the laboratory after the medical examiner “preliminarily determined that arson had occurred and after appellant had been arrested;” and the technician performing the tests “would have known that the medical examiner’s office was a medical-legal operation.” Id.

And in State v. Johnson, we determined that the district court plainly erred by allowing the state to present an autopsy report through a doctor who was not one of the medical examiners who performed the autopsy. 756 N.W.2d 883, 892 (Minn. App. 2008), review denied (Minn. Dec. 23, 2008). We rejected the idea that the medical examiner’s statutory autopsy duties were “sufficiently independent” of a criminal investigation to render the autopsy report nontestimonial. Id. at 889–90. We pointed out that “Johnson was arrested at the scene. And the autopsy was not performed until approximately 33 hours after death, by which time a homicide investigation presumably had begun.” Id. at 890.

The court declines to find a confrontation violation by doubling down on a confusing record about the time when the radiologist made his report. The defense said that the report of the radiologist came after the police began its investigation and so it was made "in anticipation of litigation." The rub, however, is some sloppy paperwork at the radiologist's office. The time on the report, itself, is "10:34", without a succeeding "a.m. or p.m." This omission allows the court to pronounce that the time notation is "military" time.  No one claimed that the police investigation had begun before 10:34 a.m.; indeed, it's the conclusion of the court that these two events occurred independently of each other more or less at the same time. Consequently, the report wasn't prepared "in anticipation of litigation."  

Affirmative Misadvice About Length of Predatory Offender Registration is Ineffective Assistance of Counsel

State v. Ellis-Strong, Minn.Ct.App., 6/19/2017.  Mr. Ellis-Strong pled guilty to criminal sexual conduct in the first degree.  A conviction for this offense requires that Mr. Ellis-Strong register under the predatory offender statute for life.  At the time of the plea, however, his counsel mis-informed him that the registration period was ten years.  Before sentencing Mr. Ellis-Strong moved to withdraw his plea because, he said, his counsel's misinformation was ineffective assistance of counsel.  

Just a month or so ago the court of appeals said that an attorney's misadvice to a client about a collateral consequence does not, on its own, render a guilty plea unintelligent and manifestly unjust.  State v. Brown.  There was no ineffective assistance of counsel claim made in Brown, however.  So, for Ms. Ellis-Strong:

In sum, even though predatory-offender registration is a collateral consequence of a guilty plea, affirmative misadvice about such consequences may amount to ineffective assistance of counsel if the Strickland factors are met.

The court concludes that Mr. Ellis-Strong meets the "objective standard of reasonableness" requirement of Strickland:

Like the statute at issue in Padilla, the predatory-offender registration statute here is succinct, clear, and explicit. Ellis-Strong pleaded guilty to first-degree CSC under Minn. Stat. § 609.342, subd. 1(a). The statute governing registration of predatory offenders, Minn. Stat. § 243.166, subd. 6(d)(3) (2014), clearly states under the heading “Registration period,” that a person shall comply with the registration requirements for life if the person is required to register based on a conviction under Minn. Stat. § 609.342, subd. 1(a). As Ellis-Strong notes, despite the clarity in the statute, his attorney misadvised him that he was only required to register for ten years. 

Because the trial court did not address Strickland's prejudice requirement the court of appeals sends the case back to the trial court to address that question. 

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

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

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

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

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

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

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

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

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

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

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

Defense Counsel Need Only Read The Immigration Statute - Never Mind Cases - To Satisfy Duty To Provide Immigration Consequences Advice Under Padilla

Sanchez v. State, Minn.S.Ct., 2/22/2017.  Talk about perfect timing. Justice Stras gets to suit up in his professorial robes, mount the podium and teach the rest of us a little bit about the Kafkaesque work of immigration.  Sorry, no Powerpoint.  Mr. Herrera Sanchez pled guilty to third degree criminal sexual conduct, which led ICE to initiate removal proceedings against him.  To avoid that Mr. Herrera Sanchez moved to withdraw his guilty plea; he said that his attorney provided ineffective assistance by failing to accurately inform him that his plea would lead to his removal.  

So, just what advice did counsel provide to Mr. Herrera Sanchez? Well, first counsel had him execute the standard issue plea petition which has this to say about immigration:

My attorney has told me and I understand that if I am not a citizen of the United States this plea of guilty may result in deportation, exclusion from admission to the United States of America or denial of citizenship.” (Emphasis added.)

This is bad advice in Mr. Sanchez's case, which ICE agents demonstrated by arresting Mr. Sanchez the moment he left the court room.  Next, during the plea colloquy counsel told Mr. Herrera Sanchez that his plea of guilty "could result in either deportation, exclusion from admission to the United States, or denial of citizenship."   More bad advice, see ICE actions.  At the post conviction hearing, defense counsel testified that he told Mr. Sanchez that he would be deported as a result of his plea.

At sentencing the court gave Mr. Herrera Sanchez a stay of imposition of sentence. As mentioned already, this turned out to be a short-lived perk because ICE took Mr. Herrera Sanchez into custody as soon as the gavel fell. ICE then issued a final administrative removal order, explaining that third degree criminal sexual conduct involving a minor was an "aggravated felony" under the immigration laws. Any alien who is convicted of an aggravated felony at any time after admission is deportable.  8 U.S.C. 1227(a)(2)(A)(iii).

Mr. Herrera Sanchez said that Padilla required his counsel to have advised him that his plea would result in his deportation rather than just that deportation was a possibility.  Padilla, says that when the consequences of a plea are "succinct and straightforward" then counsel has to convey what that consequence is.  Otherwise, counsel need only provide some vague, lawyer esque answer, "Well, this may happen or that may happen, no one really knows."  Therein lies the rub: how does counsel ascertain whether the immigration consequences of a plea are "clear and certain."  

Both immigration administrative interpretations and case law state that Mr. Herrera Sanchez's plea rendered him deportable.  The statutes, not so much.  There are two statutes that render a noncitizen presumptively deportable for the commission of an "aggravated felony" and "sexual abuse of a minor" is included in the list of felonies considered to be "aggravated".  The problem is, however, that Congress left it to immigration and the courts to flesh out just what state crimes constituted "sexual abuse of a minor." Justice Stras makes the somewhat dubious claim that the federal courts have not been able to agree that an adult who rapes a child has committed "sexual abuse of a minor."  He supports this claim by citing Rangel-Perez v. Lynch, 816 F.3d 591 (10th Cir. 2016), which doesn't say that at all:

Because it requires no mens rea, the Utah statute punishes a broader range of conduct than the conduct that falls within the INA's generic “sexual abuse of a minor” offense, which requires proof of at least a “knowing” mens rea. A conviction under the Utah statute, then, does not fall categorically within the INA's generic “sexual abuse of a minor” offense; Rangel–Perez's Utah conviction does not qualify as an “aggravated felony” under the INA; and he is not disqualified from seeking discretionary cancellation of removal.

Although Justice Stras clearly relishes diving into the weeds to root out the intricacies of federal immigration law he concludes that it's way beyond defense counsel's constitutional requirements of effective assistance of counsel to do the same.   Essentially he says just read the statute; if it's not abundantly clear then any old answer will do. 

Justice Lillehaug concurred in the result.  He said that it was "clear as a bell" that Mr. Sanchez would be deported as a result of his plea; ICE drove home that clarity by arresting Mr. Sanchez the minute he left the courtroom.  Justice Lillehaug essentially chides Justice Stras for the lecture as being unnecessary.  This is because at the post conviction hearing defense counsel testified that he did advise Mr. Sanchez that he would be deported if he pled guilty. The post conviction court accepted that assertion in its findings of fact. End of story, Padilla's duty fulfilled.

Court Ignores Psychological Evidence In Concluding That Confession Was Voluntary

State v. Nelson, Minn.S.Ct., 10/26/2016.  Mr. Nelson, just barely eighteen, is serving a life without release sentence.  A jury convicted him of the murder of his father.  On appeal he argued that his confession was not voluntary.  Here's how Justice Chutich put the issue:

Nelson contends that his confessions were not voluntary and therefore the district court erred when it denied his motion to suppress them. He asserts, in particular, that his on-scene confession was involuntary because the interrogating officers led him to believe that they were not his adversaries and that confessing would benefit him. He also asserts that his youth, inexperience, and upbringing made him “particularly susceptible” to the officers’ manipulative interrogation techniques, in part because childhood abuse had conditioned him to acquiesce to male authority figures. 

A confession is involuntary only when a defendant's "will was overborne at the time he confessed."  State v. Farnsworth, 738 N.W.2d 364 (Minn. 2007).  The actions of the interrogators, together with the circumstances surrounding the confession must be "so coercive, so manipulative, so overpowering that [a defendant" was deprived of his ability to make an unconstrained and wholly autonomous decision to speak."  State v. Pilcher, 472 N.W.2d 327 (Minn. 1991).  Both sides presented expert testimony on the question of the voluntariness of Mr. Nelson's confession. Tellingly, Justice Chutich never mentions this testimony - from either side - in concluding that Mr. Nelson's will had not been overborne.

Mr. Nelson committed this offense one week past his 18th birthday. He argued that psychologically and socially he was still a juvenile and thus should benefit from Miller v. Alabama's rule that a mandatory life sentence without release is unconstitutional.  Justice Chutich ducks this claim by pointing out that he had not raised it in the district court.  

Court Rejects Post Conviction Claims of Ineffective Assistance of Counsel

Swaney v. State, Minn.S.Ct., 7/13/2016.  Mr. Swaney is serving a life sentence without possibility of release.  The supreme court affirmed his direct appeal back in 2010.  In this post conviction go-round, Mr. Swaney made a lot of claims, most of which the post conviction court summarily denied under Knaffla.  The post conviction court did hold an evidentiary hearing on three of Mr. Swaney's ineffective assistance of counsel claims: that his trial counsel had been ineffective by not obtaining the prison phone records of an inmate who claimed that Mr. Swaney made inculpatory statements to him; by not personally interviewing witnesses; and by being inexperienced.  

Justice Dietzen concludes that Mr. Swaney is not entitled to any relief. Mr. Swaney claimed that this inmate had access to information about the crime other than from him, which the jury should have known. Justice Dietzen said, however, that because Mr. Swaney was unable to show what the contents of the inmate phone calls were, it was speculative whether production of those calls would have changed the outcome of the trial. To cover the bases, the Justice went on to say that even if the calls had supported Mr. Swaney's claim, the calls would have been impeachment evidence at most.

Mr. Swaney said it was ineffective for trial counsel to have sent out an investigator to interview witnesses, that counsel should have undertaken that role.  Justice Dietzen rejects this claim as meritless, pointing out that sending out an investigator eliminates the risk that counsel would become a witness and thus unable to continue representation.

Finally, inexperience, by itself is not grounds to support an ineffective assistance claim.  Inexperience can be a factor in judging counsel's performance but that's as far as it goes. Moreover, trial counsel's only apparent "inexperience" was not having previously tried a murder one case.  However, counsel had two co-counsel who had tried murder one cases.

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

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

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

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

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

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

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

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

Court Upholds Murder Conviction, Rejecting Fourth & Sixth Amendment Claims

State v. Horst, Minn.S.Ct., 5/18/2016.  Ms. Horst and some of her friends plotted, for the usual reasons - infidelity, abuse - to kill Horst's husband, Brandon.  Eventually all but one of the friends, Allen, dropped out; for instance, on the way to the murder one of the friends ran into an old girlfriend and that was that.  Ms. Horst gave Allen a loaded gun, told him to hide in the basement until Brandon was asleep and then go upstairs and shoot him.  Ms. Horst then went shopping at Walgreens.  From there she sent multiple text messages urging Allen on until finally Allen shot Brandon one time in the head as he lay sleeping.  Ms. Horst then returned to the murder scene, called 911, and reported that someone had broken into her home and killed her husband.  The state charged Ms. Horst with first degree premeditated murder and Allen turned state's evidence against her.  

Police "invited" Ms. Horst to accompany them down to the police station, an invitation that she apparently accepted.  The officers questioned her in an unlocked conference room, she was allowed to keep possession of her personal belongings, and she left after concluding the interview. Justice Stras concluded that these facts supported the trial court's conclusion that the interview of Ms. Horst was not a "custodial" interview that required a Miranda warning.  Ms. Horst pointed to the two times that an officer accompanied her to the bathroom, the location of the interview at the police station, and the increasingly "accusatory tone" of the interview to support her claim that the interview was a "custodial" one.  Relying on a "totality of the circumstances" analysis, Justice Stras affirmed the trial court's conclusion that the interview had not been a "custodial" one.

Before Ms. Horst left the police station an officer grabbed her cell phone.  The state later got a search warrant to "seize" the contents of the phone, but Ms. Horst complained about the warrantless seizure of the phone, itself.  The trial court said that after Ms. Horst and the officer talked about what texts or calls might be on the phone an exigency existed because of the "possibility of imminent destruction or removal" of the data contained on the phone.  Justice Stras said that seizure of the phone in order to preserve its contents while getting a warrant was no different that "seizure" of a person whom police have probable cause to suspect had marijuana hidden in his home so that he could not sound the alarm.  Illinois v. McArthur, 531 U.S. 326 (2001).  Ms. Horst had argued that it would have been easy enough to get a warrant to seize the cell phone, which could have been accomplished with a phone call under Rule 36.03.  Justice Stras acerbically observes, however, that although the rule permits a telephone call to get a warrant the office must also prepare a "duplicate original warrant," which would mean interrupting the interview - is there only one officer working this case? - draft the warrant, call the judge, etc., all the while risking that Ms. Horst would simply get up and walk the cell phone out the door and into the nearest incinerator.

Ms. Horst complained about the state's use of multiple search warrants to obtain her medical records in order to refute her claim that she had miscarried multiple times as a result of Brandon's assaults.  Ultimately, however, the state did not introduce any of those records.  Ms. Horse nonetheless said that because the state had use of those records to formulate its theory of the case that there had been constitutional violations.  Justice Stras said that even if the records influenced the state's presentation of its case the evidence of guilt was sufficiently overwhelming that no reasonable jury would have reached a different conclusion.

Ms. Horst complained that the trial court should have given an accomplice corroboration instruction.  The state agreed that Allen was an accomplice, but because Ms. Horst didn't request the instruction it was harmless under the "plain error" doctrine.  Justice Stras agreed after going through a multi-factor analysis described in State v. Jackson, 746 N.W.2d 894 (Minn. 2008).

Finally, the court rejected Ms. Horst's claim that the state's evidence had been insufficient to convict her; and rejected a claim that because a potential juror and an investigator had been classmates some decades ago the trial court should have removed the juror for cause.

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.  

Impaired Driver Arrestee Need Not Be Taken Before a Judge Before Administration of a Breath Test

State v. Shimota, Minn.Ct.App., 2/16/2016.  The DWI/Refusal wars are unrelenting.  Here's how the court set the tone for this latest set of challenges:

Appellant Michelle MacDonald Shimota grabbed her steering wheel, her gear shift knob, and a police officer’s wrist to prevent police from removing her from her car when she refused to be taken into custody on suspicion of drunk driving. After the officers pulled her loose and took her to the police station, Shimota would not submit to a breath test, demanding to be taken before a judge. Shimota challenges her convictions of obstructing legal process and chemical-test refusal, arguing that police violated her statutory right to be taken immediately before a judge after her arrest, that the district court violated her alleged Sixth Amendment right to create a video recording of the trial, that the district court improperly instructed the jury on the crime of test refusal, and that the evidence does not prove obstruction. 

Ms. Shimota said that the police were required to take her "immediately" to a judge, even before administration (or the offer thereof) of a breath test.  This lets the dogs loose for more of the court's favorite activity of late:  law by dictionary.  Just when does "immediately" mean, well "right now, dammit;" and when does it mean "will you give me some room here, I'm getting to it"? Here's how the court commences this inquiry:

 Tracing its literal meaning from its Latin origins, we know that the word means “not” (in or im) “intervening” (mediatus). See 7 Oxford English Dictionary 681 (2d ed. 1989). “Immediate” is therefore a relational word that joins two places, persons, or events with each other without any intervening place, person, or event.

The erudition does not improve thereafter. When all the dust settles, the court emphatically says that "immediately" does not mean that one who is arrested on suspicion of drunk driving gets to see the judge before being invited to blow into the machine.

On trial day, Ms. Shimota arrived with a filming crew and commenced to set up to record the trial.  The rules of practice require unanimous consent of the parties to permit that and the state was having none of it.  Ms. Shimota countered that the Sixth Amendment, in combination with the First Amendment, gave  her the right to record her own trial.  The court of appeals is not persuaded; mostly because the court couldn't find any court that had created this constitutional right to record one's own trial. Unsaid is the absolute chaos that creation of such a constitutional right would create.

Ms. Shimota also complained about the trial court's instruction on the officer's requirement to have had probable cause that she was impaired before he could require her to submit to a breath test.  Essentially, she said that it was impossible for a juror to assess the "objective facts" from the viewpoint of a reasonable officer.  The court dismisses this argument with the rather flippant observation that jurors are required to apply a reasonable person standard all the time, so what's the problem here?

Rule 27.03, Subd. 9 Proper Procedure to Challenge Post Sentencing Imposition of Conditional Release Term

Reynolds v. State, Minn.Ct.App., 1/25/2016.  Mr. Reynolds pleaded guilty to failure to register under the predatory offender registration statute. Three months after sentencing the trial judge amended the sentence to add a ten year conditional release term.  Four years later Mr. Reynolds moved to vacate that conditional release term under Rule 27.03, subdivision 9 of the criminal rules.  The trial judge treated the motion as a post conviction petition and denied it summarily as time-barred under the post conviction statute.  The trial judge also addressed the merits of the request and concluded that because Mr. Reynolds was a "risk-level III offender" he was subject to the ten year conditional release term.

Rule 27.03, subdivision 9 does not have a limitations provision; quite the contrary:  the district court "may at any time correct a sentence not authorized by law."  The post conviction statute, on the other hand, has a two year limitations provision.  The question of which to apply has vexed the courts ever since the legislature added the limitations provision to the post conviction statute:

The answer depends on the nature of Reynolds’s challenge. We have held that the two-year statutory time limit does not apply to or restrict motions “properly filed” under rule 27.03. Vazquez v. State, 822 N.W.2d 313, 318 (Minn. App. 2012). And a motion is properly filed under the rule if the offender challenges a sentence on the grounds that “the sentence is contrary to an applicable statute or other applicable law.” Washington v. State, 845 N.W.2d 205, 213 (Minn. App. 2014); see also Vazquez, 822 N.W.2d at 318 (holding  that a challenge to a sentence based on the district court’s incorrect calculation of the offender’s criminal-history score was properly raised under rule 27.03); State v. Amundson, 828 N.W.2d 747, 751 (Minn. App. 2013) (holding the same for a challenge based on an unauthorized upward departure at sentencing). The supreme court has held that a challenge is not properly filed under rule 27.03 when it implicates more than simply the sentence and instead effectively challenges the validity of the underlying conviction or plea agreement. State v. Coles, 862 N.W.2d 477, 480–81 (Minn. 2015); see also Wayne v. State, 870 N.W.2d 389, 391–92 (Minn. 2015) (applying Coles and deeming the claim outside the rule because a victory would have entitled the claimant to “a new trial, not a reduced sentence”)

The state wanted the court to limit the "law" of "not authorized by law" to "laws enacted by the legislature.."  The court of appeals rejected this miserly interpretation.  Instead, the court stuck with the formula from the supreme court's opinion last year in State v. Coles, 862 N.W.2d 477 (Minn. 2015) which said that a challenge under Rule 27.03 is not proper when it implicates more than simply the sentence.  So, Mr. Reynolds gets to stay in court.

Turning to the merits, while this appeal was kicking around the supreme court decided State v. Her, which held that a district court can impose a conditional release term based upon a defendant's status as a risk level II offender only if that defendant admits to that status or a jury finds it.  It's a Blakely problem.  So, on the merits of Mr. Reynold's challenge the district court got it wrong by imposing the conditional release term itself, never mind about the lack of notice and opportunity to be heard beforehand.

The court of appeals punts the case back to the trial court to figure out what relief is available to Mr. Reynolds.  This likely includes a Blakely jury trial to determine his risk status.  See State v. Hankerson, 723 N.W.2d 232 (Minn. 2006).

Mail Properly Addressed and Sent Is Presumed to Have Been Duly Received

State v. Osorio, Minn.Ct.App., 12/14/2015.  Back in March 2007 the state investigated a claim that Mr. Osorio had sexually abused his minor stepdaughter.  No charges were filed at the time.  Mr. Osorio moved to California a move that the local police knew about.  The local police resubmitted the case or charging about nine months later but again no charges were filed.  

Nearly five years later, in September 2012, the local police received a complaint that Mr. Osorio had sexually assaulted another of his minor daughters.  In May 2013, the state finally charged Mr. Osorio with two counts of criminal sexual conduct in the first degree.  He was not arrested until twenty-one months later, Februry 2015 during which the state knew exactly where Mr. Osoria was. Mr. Osorio moved to dismiss on Barker v. Wingo, 407 U.S. 514 (1972) speedy trial grounds.  The trial court dismissed the charges.  

Mr. Osorio wins the first of the four Barker factors, the length of delay. A twenty-one month delay is presumptively prejudicial. The second factor is the reason for the delay.  The state knew where to find Mr. Osorio during the twenty-one month delay; it just didn't bother to got get him. So, this negligence goes against the state. Two down, two to go.

The third factor is whether and when Mr. Osorio asserted his right to a speedy trial.  Here, the court issued a summons and complaint and mailed them to Mr. Osorio's address in California.  There is nothing of record to refute the presumption that Mr. Osorio got the letter.  Also, he did not claim that he did not get the letter.  This factor goes to the state.  The fourth factor is prejudice to Mr. Osorio that is due to the delay.  About the best that he could do was to speculate that some possibly exculpatory audio recordings had been lost or destroyed during the delay, but he could not establish that this loss or destruction was "due to the delay."  What was left was Mr. Osorio's inaction after he presumably got the summons and complaint.  This one also goes to the state.

To break the tie, the court looks to the seriousness of the alleged offense.  That tips the scales in the state's favor.

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.

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

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

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

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

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

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

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

A Defendant’s Risk Level Status Must Be Determined By a Jury Before the Court Can Impose a Conditional Release Term On The Basis of That Status

State v. Ge Her, Minn.S.Ct., 4/22/2015.  There are a thousand – well, not really, but there’re a lot –of ways to get on the BCA’s mailing list to receive one of the Annual Verification letters that they send out to predatory offenders.  Mr. Her is required to register but when he failed to notify law enforcement that he had moved to a new residence the state charged him with failing to register.  A jury found him guilty of that offense.  The trial court sentenced Mr. Her to sixteen months in prison, and also sentenced him to a 10 year conditional release term.  The trial court included this conditional release term because the department of corrections had previously determined that he was a risk-level-III offender.

Mr. Her eventually filed a motion under Rule 27.03, subd 9 to correct his sentence.  He said that he was entitled to a jury trial to determine his risk level status.  See Blakely v. Washington, 542 U.S. 296 (2004), which holds that other than a prior conviction, any fact that increases the penalty for a crime beyond the sentence authorized by the facts reflected in the jury verdict or admitted by the defendant must be submitted to a jury and proved beyond a reasonable doubt.  Both the district court and the court of appeals said, no, the risk level status was like a prior conviction and thus not subject to Blakely’s jury trial requirement.  See Almendarez-Torres v. United States, 523 U.S. 224 (1998).

Justice Stras, writing for the entire court, says, no, that the risk level status is a “fact” that must be proved beyond a reasonable doubt to a jury.  In a previous opinion, State v. Jones, 659 N.W.2d 748 (Minn. 2003), the court had said that a trial court’s imposition of a conditional release term based upon findings by the judge – defendant’s conduct was motivated by sexual impulses or was part of a predatory pattern, he presented a danger to public safety, and he needed long term treatment or supervision – violated Blakeley.  Those additional facts had to be found by the jury.  Mr. Her’s risk level status is no different and must also be found by the jury.

No Sixth Amendment Violation From A Defendant’s Request to Close the Courtroom Because Closure Did Not Seriously Affect the Fairness of the Judicial Proceedings

State of Minnesota v. Benton, Minn.S.Ct., 1/28/2015.  During Mr. Benton’s jury trial he made two requests to the trial court to close the courtroom.  The trial court granted both requests without objection by the state.  During the first courtroom closure Mr. Benton complained about some testimony that had been received in evidence and about his dissatisfaction with his trial counsel.  During the second courtroom closure Mr. Benton asked to be absent from that day’s proceedings.  During that discussion Mr. Benton was apparently in restraints and dressed in a jail jumpsuit.

On appeal, Mr. Benton said that these courtroom closures violated his Sixth Amendment right to to a public trial.  Justice Anderson, writing for a unanimous court, rejected this argument.  Justice Anderson did so for two reasons:  first, Mr. Benton invited the alleged error and the alleged error did not seriously affect the fairness, integrity,or public reputation of the judicial proceedings.  This “invited error” doctrine has been applied in courtroom closures in the past.  State v. Kortness, 284 Minn. 555, 170 N.W.2d 210 (1969).  Even in an “invited error” situation, an appellate court is still required to review the error if it seriously affects the fairness, integrity or public reputation of judicial proceedings.  Such review is akin to plain error review.  Mr. Benton not only consented to the courtroom closures he requested them.  He made the requests in the belief that they would benefit his defense.  Mr. Benton cannot, therefore, meet the “seriously affect” test.

Mr. Benton also complained about the admission of relationship evidence.  The court had admitted such evidence that was against persons other than the victim of the offense for which he was on trial.  He said that such non-victim relationship evidence should not have been admitted and that the probative value of that evidence was substantially outweighed by the danger of unfair prejudice.  Justice Anderson did not say whether admission of this evidence was error because in the court’s view admission of this evidence did not significantly affect the verdict.

The state had charged Mr. Benton with first degree domestic abuse murder, which requires proof of a “past pattern” of domestic abuse.  On his motion, the trial court bifurcated that element of first degree domestic abuse murder from the other elements.  Despite the bifurcation, the trial court admitted relationship evidence during both phases of the trial.  Justice Anderson didn’t seem to think this mattered, even though the upshot was to vitiate the bifurcation; the whole point of the bifurcation was to keep relationship evidence out of play during the jury’s determination of guilt/innocence of the actual homicide.  The Justice avoids this problem by eschewing deciding whether admission of the relationship evidence – regardless of when it came in – was an error at all.

Police Interrogation After Initial Court Appearance & Appointment of Counsel Did Not Violate Either Sixth Amendment or Professional Conduct Rules

State v. Ware, Minn.Ct.App., 12/8/2014.  Mr. Ware’s girlfriend called the police to report that Mr. Ware  had assaulted her.  The investigator assigned to the case got to work on it the next day and four days after that he sent a recommendation to the prosecutor that Mr. Ware be charged.  Meantime,  Mr. Ware kept pestering the police department with phone calls in which he said that he wanted to come in and talk.  Mr. Ware finally just went down to the police station where officers promptly arrested him.

The prosecutor filed a criminal complaint, Mr. Ware made his initial appearance on that Complaint, and the court appointed him a lawyer.  Two days later, the investigator showed up at the jail to interrogate Mr. Ware.  Mr. Ware listened through the Miranda warning, signed the waiver and then made lots of admissions.  He did not tell the investigator that he either had an attorney or wanted the attorney to be present.  The investigator made no effort to determine whether Mr. Ware had already been arraigned on the criminal complaint and had counsel appointed.  Rather, he chose to believe, because it was most convenient, that Mr. Ware was in jail on a probation violation.  A riff on The Ostrich Instruction.

Mr. Ware moved to suppress his statement to the investigator because the investigator had not first contacted defense counsel and because he should have known that Mr. Ware was represented.  The trial court concluded that the prosecutor had been totally out of the loop and that it was “questionable” whether the investigator knew that Mr. Ware was represented.  The trial court denied the suppression motion.

And the court of appeals affirms.  A defendant, the court says, may waive the right to counsel whether or not he is already represented by counsel.  If the state proves that the waiver was valid – that is, it was a knowing, intelligent and voluntary act – then the statement is admissible.

Mr. Ware also complained that the investigator’s interrogation violated a rule of professional conduct that prohibits an attorney from interviewing a represented defendant without opposing counsel’s presence or consent.  There was no proof that the prosecutor had any contact with Mr. Ware without defense counsel’s presence or consent.  So, to come within this rule of professional conduct, the prosecutor either had to have ordered or ratified the interrogation.  Because the prosecutor had no knowledge of the interview until it was concluded he neither ordered nor ratified the interrogation.

Waiver of a Jury Trial is Charge Specific; a Valid Waiver Obtained Before the State Amends The Complaint With Additional Charges Does Not Carry Over to Those New Charges.

State v. Little, Minn.S.Ct., 8/13/2014.  The state charged Mr. Little with one count of criminal sexual conduct in the third degree, and one count of criminal sexual conduct in the fourth degree.  At some point before trial, Mr. Little waived his right to a jury trial on these two counts; everyone agreed up and down the line that the court had obtained a valid personal waiver from Mr. Little.  Then, right before trial, the state amended the complaint to add a count of first degree criminal sexual conduct.  Mr. Little’s attorney told the judge, in Mr. Little’s presence, that his client still waived his right to a trial by jury.  The judge said fine, heard the proof and found Mr. Little guilty.

In the court of appeals, Mr. Little challenged the absence of a personal waiver to a jury trial on the added CSC I count.  The court of appeals rejected that challenge and affirmed the conviction.   In an opinion by Justice Page, writing for six members of the court – Justice Stras concurred in part and dissented in part – the Supreme Court reverses the conviction and remands for a new trial.

Justice Page goes back to an 1893 case, McGeagh v. Nordberg, 53 Minn. 234, 55 N.W. 117 (1893) that says that a jury trial waiver only applies to the issues formed at the time of the waiver.  The Justice can find no reason to apply a different rule in criminal cases.  So, a defendant may waiver his right to a jury trial on the charges then in front of him, but if the state thereafter piles on additional charges there must be another personal waiver from the defendant.  In reaching this result, the court rejected the state’s argument that all that a defendant needs to understand about waiving a jury trial is the general concept of what a jury trial looks like.  Not good enough.  When  the state amends a complaint after a defendant’s jury trial waiver, the trial court must obtain a renewed waiver – personally from that defendant and not his lawyer – on the amended complaint.

That part was fairly easy, so much so that even Justice Stras concurred in that part of the opinion.  But, then the court has to decide what the remedy is, tricky because Mr. Little did not object to the omitted personal waiver.  Indeed, he stood by silently while his attorney made that waiver for him.  The absence of a trial objection asks the question, what standard of review to apply.  The state and the defense differed on just what standard of review should apply to this error:  plain error or “structural error.”  If it’s structural error then Mr. Little immediately advances to go, gets a new trial without any regard to prejudice from the error.  If it’s plain error, then Mr. Little has to establish that the error, besides being “plain” affected his substantial rights.  Justice Page ducks that fight all together by saying without deciding that Mr. Little was entitled to a new trial under plain error analysis.

Mr. Little easily gets past the first two requirements of plain error.  There was error, and it was plain because of this nineteenth century civil case.  Justice Page concludes that on the facts of this case that Mr. Little met the substantial rights requirement as well.  Those facts convinced the court, except for Justice Stras, that there were significant concerns whether Mr. Little and his counsel had fully discussed the advantages and disadvantages of waiving a jury trial after the state added the CSC I count.  Indeed, Mr. Little may not even have been aware of the additional count according to what he said to the pre-sentence investigation officer.

As mentioned, Justice Stras concurred in the conclusion that failure to have obtained an additional personal waiver was error.  Justice Stras dissented over the standard of review and over the grant of a new trial.  Justice Stras dons his cap and gown, picks up a piece of chalk and proceeds to lecture the other members of the court on the various standards of review of trial error.  He scolds them for not taking up the gauntlet of just exactly which standard of review should have been applied in this instance, and points out why it should be plain error.  The Justice just doesn’t like these messy short cuts of utilizing a particular standard of review without really saying whether it’s the correct one to be employing.  Justice Stras’s take on plain error leaves Mr. Little sitting in prison.  The Justice thought that Mr. Little needed to have shown that he would have chosen a jury trial had the trial court questioned him about the waiver on the new charge.  Result over process.  Justice Page focused on the process, concluding that it would be sheer speculation to try to second guess what Mr. Little might have done in the face of a valid waiver inquiry.

A “Stipulated Facts” Trial on Stipulated Evidence With Conflicting Versions of Events Morphs Into a Bench Trial On Stipulated Evidence Notwithstanding Different Waiver Requirements; No Ineffective Assistance of Counsel For Pulling This Off.

Dereje v. State, Minn.S.Ct., 10/9/2013.  This comes up – and gets its comeuppance – from the court of appeals.  Read here.  It’s the latest go round in the mess within Rule 26.01 – court trials, trials on stipulated facts, dispositive motions – and the attendant requirements for each (never mind what to call these things).  The court has now come full circle.  After complaining repeatedly – read here, here, and here - about lawyers' inability to keep the myriad non-jury trial alternatives straight – especially the different rights required to be waived for each - it turns out it doesn't really matter after all.

Mr. Dereje thought he was signing up for a stipulated facts trial, so he waived not only his right to a trial by jury but he also waived a bunch of other rights as well:  his right to have prosecution witnesses testify and then confront those witnesses, his right to testify, and his right to compel the testimony of favorable witnesses.  The lawyers gave the judge the Complaint and the police reports (and then apparently went home) but the reports contained not one but two completely opposite accounts of the alleged facts:  the alleged victim said (not too convincingly) that Mr. Dereje had sexually groped her; Mr. Dereje said, no, he didn’t.  The trial court looked at all that and then made findings of fact to support convicting Mr. Dereje.  That sounds closer to a trial (sort of) without a jury, which only requires (at a minimum) a waiver of the right to a jury trial. 

The court of appeals had concluded that you can’t have a stipulated facts trial when the parties don’t agree what those facts are.  Nonetheless, this error was harmless because Mr. Dereje’s waiver of all of his rights – not just to a jury – converted the thing into a “valid bench trial based on stipulated evidence.”  Justice G. Barry Anderson, joined on this issue by Chief Justice Gildea, and Justices Dietzen, Stras and Wright, (Lillehaug still not participating), agreed with this determination.  Justice Anderson thought that this is so because Mr. Dereje waived all of his rights, and the trial court made sufficient findings of fact from the stipulated evidence.

The court of appeals had also concluded that Mr. Dereje had received ineffective assistance of counsel, which the court said was a structural error because counsel had “entirely failed to subject the prosecution’s case to meaningful adversarial testing.”  Justice Anderson (without Justice Wright)  rejects this conclusion.  After all, defense counsel submitted police reports with Mr. Dereje’s account of events.  How much more advocacy do you want?  Instead of either remanding back to the trial court for a Strickland  deficient performance/prejudice analysis (or doing it themselves) the majority just ignores Strickland entirely.

Justice Wright does not; she performs that analysis, as well as the structural error analysis, in her dissent, in which Justice Page joins.  Justice Wright concluded that counsel’s performance was a structural error that entitled Mr. Dereje to a new trial without a showing of prejudice.  She said that counsel had “abdicated” his role as an advocate.    Because the only accuser against his client did not testify and was thus not subject to cross examination –curiously, the justice does not question counsel’s advice to Mr. Dereje to permit this –counsel’s only remaining tool was his mouth:  bring to the trial judge’s attention “important facts bearing on [the alleged victim’s] credibility.  Instead, counsel remained mute.  In short, counsel “uttered not one word of advocacy on behalf of his client.” 

To cover the waterfront, Justice Wright went on to conclude – for the same reasons - that counsel’s performance also met the Strickland standard as well. 

Justice Page also dissented.  Although he joined Justice Wright’s dissent in which she concluded that it was okay to convert a stipulated facts trial into a bench trial on stipulated evidence, he, nonetheless didn’t like it because of the differing waivers associated with these two procedures.  Justice Page concluded that Mr. Dereje’s waivers to one thing – a stipulated facts trial – did not validly carry over to a totally different thing – a court trial on stipulated evidence.  Justice Page thought that Mr. Dereje was entitled to a new trial for this reason.  Justice Page also believed that Mr. Dereje had received ineffective assistance of counsel – both structural and Strickland which also entitled him to a new trial.  Justice Wright joined this dissent.

Because Defendant was Not “In Custody” No Error in Admitting His Statement

State v. Sterling, Minn.St.Ct., 7/24/2013.  The cops, they swear on a whim, invited Mr. Sterling down to the cop shop man cave to chat about a murder they were investigating; being good public servants they even offered him a ride downtown.  Which he accepted.  Once there, the police did not handcuff Mr. Sterling and did not lock him inside the interrogation room when they left him alone to stew.  Whether Mr. Sterling could have actually left the building permanently remained untested, although he was denied a cigarette break and like the cigarette break Mr. Sterling had to ask the cops for anything else that he may have wanted .

Mr. Sterling arrived at the police station at 3:30 in the morning.  Nine and a half hours later the cops arrested Mr. Sterling for the very murder that they were investigating, and only then did they read him the Miranda warning.  He did lawyer up at that point.

Mr. Sterling moved to suppress the statements he made before being given a Miranda warning.  The trial court denied that motion, concluding that a reasonable person would not have believed during that nine and a half hours that he was in police custody to the degree associated with formal arrest.  Justice Page, writing for a six person court, agreed, citing State v. Champion, 533 N.W.2d 40 (Minn. 1995), and State v. Vue, 797 N.W.2d 5 (Minn. 2011).  Justice Page recites a laundry list of factors that may combine to indicate that an individual is in custody, but not one of those factors is whether a reasonable person would believe that she was not free to leave. 

Everyone took a break of some sort after about seven hours or so.  When things got going again it seemed pretty clear – at least to Justice Page – that the cops were zeroing in on Mr. Sterling.  He was still not under arrest yet and thus did not get a Miranda warning; another two plus hours awaiting that event.  During this period Mr. Sterling made several statements that the state introduced at trial.  Justice Page said that it was a “close call” whether Mr. Sterling was “in custody” after the break but decided it didn’t matter, that any error in admitting the statements Mr. Sterling made in this interim was harmless.

Mr. Sterling also challenged the sufficiency of the circumstantial evidence to support the conviction.  The court concluded that the state had produced enough evidence to uphold the verdict.