Court Continues to Prohibit Expert Psychiatric Evidence of Mental Illness During Guilt Phase

State v. Peterson, Minn.S.Ct., 5/7/2009.  Mr. Peterson apparently shot and killed Howard Hines as Mr. Hines sat in the driver's seat of his car; Mr. Peterson shot from his third floor apartment window.  Mr. Peterson pleaded not guilty by reason of insanity and waived a jury trial.  He asked to be allowed to present expert psychiatric evidence during the guilt phase of his trial on the question of his mental state; the trial court said, no.  The court found Mr. Peterson guilty.  The court also rejected Mr. Peterson's mental illness defense during the sentencing phase of the trial.

On appeal, Mr. Peterson said that denying expert psychiatric testimony during the guilt phase violated his due process right to present a complete defense.  As the appellate court has said many times, it again said, no, it doesn't.  See State v. Brom, 463 N.W.2d 758 (Minn. 1990).  The appellate court recognized the two broad exceptions to this prohibition, established in State v. Provost, 490 N.W.2d 93 (Minn. 1992):

(1) the rare situation where there is a mental disorder characterized by the formation of a particular subjective state of mind inconsistent with the pertinent criminal mens rea; or (2) where the defendant has a past history of mental illness and the evidence is in the nature of factual background to explain “the whole man,” such as a clinical record where psychiatric opinions appear.

The appellate court concludes that Mr. Peterson did not satisfy either of these exceptions.  The appellate court then upholds the trial court's rejection of Mr. Peterson's mental health defense.

Finally, the appellate court does decide that the trial court's sentence of life without possibility of release was error.  This was because at the time of the murder, Minn.Stat. 609.185 did not authorize life without possibility of release.  Mr. Peterson beat the effective date of an amendment that authorized that sentence by some six months.  The appellate court modifies the sentence to life with the possibility of supervised release after thirty years.

Court Affirms Upward Departure

State v. Stanke, Minn.S.Ct., 5/7/2009.  Warning:  this is a Blakely Opinion.  Police spotted Mr. Stanke driving a stolen car on I-35W during rush hour; there were also warrants out for his arrest for some burglaries in South Dakota but the Opinion doesn't say whether the officers knew this at the time of the chase.  Fourteen miles into the chase, an officer placed "stop sticks" in the left lane of the interstate.  Mr. Stanke avoided the sticks but in doing so struck and killed the officer, then struck another car, which caused significant injuries to the driver of that car.

Mr. Stanke entered a guilty plea to fleeing a police office resulting in death and to fleeing a police officer resulting in great bodily harm.  Mr. Stanke agreed to waive a Blakely sentencing jury, and agreed that aggravating factors existed that would justify a double upward departure in sentence length.  After a sentencing hearing, the trial court found nine "substantial and compelling" aggravating factors, and one "severe aggravating circumstance" - the officer's particular vulnerability - to justify a statutory maximum sentence of slightly more than a double departure.

The appellate court acknowledges its past pronouncements that police officers are “highly vulnerable when engaged in the performance of their duties.” State v. Brown, 345 N.W.2d 233, 239 (Minn. 1984).  Nonetheless, the statute under which Stanke plead guilty, Minn.Stat. 609.487, accounts for this vulnerability, with its more severe penalties.  The trial court's reliance on the officer's vulnerability was thus error. 

Now the questions becomes what to do about this error.  A greater than double departure requires a "severe aggravating circumstance."  State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981).  Where the aggravating factors only support an improper or inadequate reason for departure, the appellate court usually remands the case.  However, if the appellate court concludes that the trial court would have imposed the same sentence absent reliance on the improper aggravating factor then it will affirm the sentence, State v. Rodriguez, 754 N.W.2d 672 (Minn. 2008).  That's what it does here, substituting its judgment for that of the trial court, affirming the upward departure.  Any or all of the nine "substantial and compelling" aggravating factors could also serve as the required "severe aggravating circumstance."  The factors that the appellate court identifies are:

the high speeds at which Stanke drove; that the chase occurred during rush hour; that Stanke had been using methamphetamine for two weeks before the chase and had not slept during that time; that Stanke injected himself with methamphetamine during the chase; that Stanke was talking on a cell phone during the chase; and that Stanke, at some point, was steering the car with his knee.

Court Rejects Numerous Evidence Rulings in Upholding Murder One Conviction

State v. Hall, Minn.S.Ct., 5/7/2009.  A jury convicted Mr. Hall of first degree murder for the shooting death of his girlfriend's brother, Mr. Moore.  Mr. Moore didn't approve of his sister's relationship with Mr. Hall; the two men squabbled fairly regularly about it.  On the night of the shooting, Mr. Moore stepped outside of his apartment for a smoke.  Mr. Hall's girlfriend, who happened to be visiting her brother, heard two loud pops while Mr. Moore was outside; a friend of Moore's, who was also outside, heard two gunshots, then saw Mr. Hall run to his car and drive away.  Meanwhile, Mr. Moore staggered back into his apartment to tell his sister that "They got me."  He then thought it best to clarify who "they" was, so he added that it was Mr. Hall.

Police arrested and interrogated Mr. Hall, giving him a Miranda advisory.  Mr. Hall made no admissions, stating fairly early on that “I’m not admitting to anything and I’m just talkin’ to you about a story you’re tellin’ me, so, I’m not, until I have a lawyer, you know, I’m not really gonna break down anything. You know?”  At about the midpoint of the interrogation, Mr. Hall asked, “So what’s the deal man? You gonna give me a lawyer or what?”  The response from the police was to keep interrogating him for another forty minutes.

Mr. Hall testified at trial that he did, indeed, shoot Mr. Moore, but that he did so in self defense.  (Other evidence suggested rather convincingly that Mr. Moore was shot in the back through a glass door.)  Mr. Hall raised numerous evidence rulings on appeal. 

First:  Admitting the interrogation up to and including Mr. Hall's question,“So what’s the deal man? You gonna give me a lawyer or what?” The appellate court said that admitting this last question was error, but the error was harmless.

Second:  In the admitted portion of Hall's interrogation he told the police that he had a fifth degree assault conviction.  The appellate court ducks the question whether admitting this statement was error and says that even if it were it was harmless.

Third:  The trial court, on the state's rather vague motion, said that Hall could not inquire about the circumstances under, and the manner in which the police interrogated him.  This motion is becoming something of a standard in Ramsey County, so it's worth stating it; the motion asks that the defense be prohibited:

from inquiring, offering evidence, or commenting upon in the presence of the jury or prospective jurors, the constitutionality of . . . the manner in which statements were taken from the defendant.

This motion, of course, completely ignores the U.S. Supreme Court's decision twenty-three years ago in Crane v. Kentucky, 476 U.S. 683 (1986), where the Court unanimously ruled that the defendant’s right to present a defense was violated when the trial court excluded competent, reliable evidence bearing on the credibility of a confession—specifically, evidence about the setting in which the confession was obtained.   Here, the appellate court makes a rather feeble effort to distinguish Crane, saying that Hall, unlike Mr. Crane, did not actually confess, and that Mr. Hall, unlike Mr. Crane, was not a juvenile; but ultimately abandons that effort, assumes that it was error and decides that it was harmless. 

Fourth:  The trial court said that the prosecutor could refer to Mr. Moore as "the victim."  Mr. Moore said that this undermined his claim of self defense.  The appellate court rejects this claim, suggesting that the use of the phrase would have to amount to appeals to the passions and prejudices of the jury to be error.  Cf., Rairdon v. State, 557 N.W. 2d 318 (Minn. 1996).

Fifth:  Should the trial court have allowed Mr. Hall to introduce evidence of Mr. Moore's prior convictions, to impeach his dying declaration?  Mr. Hall cites numerous opinions from other states that permit such impeachment, but this research failed to move the appellate court, which again ducked the issue, assumed it was error and decided that the error was harmless.

So, for those keeping score:  the appellate court decides two of the five evidence questions - don't admit the part of the interrogation where the defendant asks for a lawyer, and it's okay to call the victim the victim so long as you don't overdo it - and ducks the remaining three.  It's an easy job, said Fox.

Lastly, Mr. Hall complained of the trial court's duty to retreat instruction, which the trial court gave twice.  It first gave the retreat instruction as part of the general self defense instruction, CRIMJIG 7.05; it then repeated the retreat instruction in a separate instruction that self defense requires compliance with the duty to retreat, CRIMJIG 7.08.  The appellate court said that both instructions accurately stated the law, and that the second retreat instruction did not unfairly emphasize one instruction over another.  State v. Peterson, 673 N.W.2d 482 (Minn. 2004).

Uncharged Crime That Occurs In the Same Transaction as the Charged Offense is Not Subject to Spreigl Evidence Analysis.

State v. Hollins, Minn.Ct.App., 5/12/2009.  A paid informant went to Mr. Hollins' apartment asking to purchase crack cocaine from him.  The state claimed that Mr. Hollins then called Mr. Scott, who came over with the goods; Mr. Scott, on the other hand, testified that it was the paid informant who made that call and that Hollins had nothing to do with it.  The state charged Mr. Hollins with aiding and abetting the sale of cocaine, and with conspiracy to do the same.

To buck up its case against Mr. Hollins, the state introduced evidence that Mr. Hollins had been "rolling a blunt" when the paid informant came into Hollins' apartment.  The appellate court reviewed this claimed error under the "plain error" standard because there had been no objection at trial. 

Minnesota has apparently not ruled on the admissibility of otherwise Spreigl evidence that consists of uncharged crimes that occur in the same transaction as the charged offense.  The appellate court fills this jurisprudential gap with this new definition:

In a criminal prosecution, evidence of another crime is intrinsic to the charged crime and therefore admissible without regard to Minn. R. Evid. 404 if: (1) the other crime arose out of the same transaction or series of transactions as the charged crime, and (2) either (a) the other crime is relevant to an element of the charged crime, or (b) excluding evidence of the other crime would present an incoherent or incomplete story of the charged crime.

The appellate court then applies its new rule and finds that evidence of "rolling a blunt" does not satisfy it.  The evidence fails to satisfy either of part (2)'s alternatives of its new rule.  Alas, the error was harmless.

The other issue in the case had to do with a permissive inference instruction: 

A person’s presence, companionship, and conduct after an offense are relevant circumstances from which a person’s criminal intent may be inferred.

Again, there was no objection to this instruction, so plain error is the review standard.  The appellate court finds no error in the instruction because:

An instruction containing a permissive inference will pass constitutional muster if it instructs the jury that (1) the jury may—as opposed to must—draw the inference; (2) the defendant is presumed innocent and it is the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt; and (3) the jury must examine all the evidence in the case.

Discharging Your Lawyer: Breaking Up Is Not So Very Hard To Do

 State v. Paige, Minn.Ct.App., 5/12/2009.  Mr. Paige retrained private counsel to represent him on these murder charges; he eventually plead guilty to second degree murder.  Before sentencing, Mr. Paige sent a letter to the trial judge, asking to discharge his attorney, and to withdraw his guilty plea.  To the discharge request, the trial court said, no, not unless you have another attorney waiting in the wings to commence representing you.  The trial court relied on the rule that governs attorney withdrawal in a criminal case, Minn.Gen.R.Pract. 703, which prevents the court from acting on the withdrawal request unless defendant already had another attorney in place to substitute in as counsel.

The trial court, however, improperly relied on this rule, which says nothing about a defendant's ability to fire his lawyer.  Rather, the trial court must ascertain just how a defendant wishes to proceed after firing counsel; with that knowledge, the trial court then determines whether the request is appropriate.  Mr. Paige gets a redo on his request to discharge counsel.

The trial court also denied the request to withdraw his guilty plea.  The trial court's first ruling had the additional result of leaving Mr. Paige high and dry during his sentencing hearing.  This was because Mr. Paige wanted to fire his lawyer because he believed that counsel had been ineffective.  Counsel, in turn, was reluctant to do anything in the way or advocating for Mr. Paige at sentencing so Mr. Paige effectively had no counsel for that hearing.  The appellate court concluded that the trial court should have recognized the existence of a potential conflict of interest and dealt with it, such as by securing new counsel.  Mr. Paige gets to go back and be heard on his plea withdrawal motion as well.

Erroneous Hearsay Rulings Result in New Trial

State v. Morales, Minn.Ct.App., 4/28/2009.  The state claimed that Mr. Morales, Mr. Vega-Lara, and Mr. Solorzano-O'Brien went into a Minneapolis whorehouse intending to rob its operators; in addition to the robbery, one or more of them committed murder.  The appellate court only gives proper names to the defendants; everyone else gets initials.  There are a lot of initials in use here so let me try to chart out the players.

V.M.-O:  the victim.	M.F.:  a cook at the whorehouse
C.M:  a prostitute	M.G.:  "associate" of Vega-Lara
M.R.:  a prostitute

Okay.  The state's theory was that either Mr. Morales or Mr. Vega-Lara had cased the house as a possible robbery target some days before the actual robbery.  On the date of the homicide, the three men visited the house; Vega-Lara and Solorzano-O'Brien engaged the services of C.M. and M.R., while Morales hung out in the parlor.  When done - according to C.M., Vega-Lara wanted a redo on the sex, but I digress - Vega-Lara and Morales commenced the robbery;  Morales drew a gun on the victim and Mr. Vega-Lara then shot and killed the victim.  Neither prostitute stayed in the parlor during the entire robbery/homicide but each could place Vega-Lara in that room and each heard the struggle and shooting.

The police investigation turned up M.G., who had information about the robbery/homicide.  The state put him up on the stand, which is where the state's trouble started.  To explain, it's time for another chart:

What M.G. told police	What M.G. told the jury
Three days before the murder, Morales told me of the plan to rob a house of prostitution.	Three days before the murder, another person told me of the plan to rob a house of prostitution.
After the murder, Vega-Lara told me that Morales had drawn a gun on the victim and that Vega-Lara had then shot the victim.	After the murder, Vega-Lara told me that another person had drawn a gun on the victim and that Vega-Lara had then shot the victim.

See the problem?  The prosecutor did, easily sliding into naming Morales as the "other person" in her closing argument.  The appellate court agreed with Morales that the redaction thus had been totally ineffective:

Thus, the state was allowed, in effect, to elicit the hearsay statements of Vega-Lara that Morales had a gun on the day of the robbery, walked towards the victim with his gun drawn, and got into a struggle with the victim over that gun.

By now you've deduced that Vega-Lara did not testify at Morales' trial.  Indeed, he "took the Fifth."  Even so, the trial court permitted the state to call Vega-Lara to the stand so that the jury would know of this invocation.  This is because the state had also granted Mr. Vega-Lara use immunity and so the trial court thought that he had no privilege to assert.  This was incorrect, however, because the use immunity granted him did not extend to perjury.

Vega-Lara had testified at his own trial.  So, every time that he refused to answer the prosecutor's question, she commenced to ask Mr. Vega-Lara questions, the theme of which was "Didn't you testify at your trial that [reads statement that implicates Morales from transcript]?"  The appellate court concluded that this was prejudicial to Morales for any number of reasons.  He gets a new trial. 

The appellate court also decided a Spreigl issue, applying the Ness analysis.

Suicide Attempt is Voluntary Absence From Trial

State v. Finnegan, Minn.Ct.App., 5/5/2009.  The state charged Mr. Finnegan with the rape of a fourteen year old.  On the second day of trial Mr. Finnegan failed to appear.  An officer went out to Mr. Finnegan's house and found him unresponsive, and unable to speak, likely the result of a drug overdose.  At the request of the prosecutor, the trial continued to conclusion, a verdict of guilty.  In a decision of first impression in Minnesota, the appellate court concluded that Mr. Finnegan had made a voluntary choice to absent himself from his trial by attempting suicide instead.

Here's what Rule 26.03, subd. 2(1) says about defendant's absence from trial:

Continued Presence Not Required.  The further progress of a trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to waive the right to be present whenever:

     1.  a defendant voluntarily and without justification absents himself or herself after trial has commenced;

The appellate court's focus was only on whether Mr. Finnegan was voluntarily absent without justification as a result of the overdose.  It relied upon an Eighth Circuit Opinion, United States v. Crites, 176 F.3d 800 (8th Cir. 2005), which had also concluded that a suicide attempt was a voluntary absence from trial without justification.  The appellate court did not, as Crites did, consider whether the decision then to continue with the trial was an abuse of discretion.  (Whether the public interest in the need to proceed clearly outweighs that of a voluntarily absent defendant in attending the trial.)  The Second Circuit has apparently adopted a more elaborate checklist by which to make this determination.  United States v. Tortora, 464 F.2d 1202 (2nd Cir. 1972), cert. denied, 409 U.S. 1063 (1972), (identifying factors to consider in this separate question). 

Here's the analysis by the First Circuit to an identical set of facts, which the Minnesota appellate court rejects:

The amount of cocaine Latham ingested was a potentially lethal overdose; the memorandum of his attorney states that the hospital gave him only a 25% chance of survival. Therefore, to conclude that Latham voluntarily absented himself from the trial, one would have to find that he either (a) knowingly took a lethal dose, or (b) had fine-calibrated the dosage so precisely that he would reach a critical medical condition, but would somehow manage to survive. Neither premise withstands scrutiny. It defies common sense to maintain that a sane defendant would attempt suicide to avoid a trial on drug charges. And, death is not the type of “voluntary absence from trial” that concerns us. Alternatively, if one were to find that Latham knew just the right amount of cocaine to ingest, so as to require hospitalization, but avoid death, it would still make no sense for him to have pursued this course because he would end up in custody (hospitalized) and upon recovery would still have to stand trial. This situation is markedly different from fleeing to avoid the trial altogether.

United States v. Latham, 874 F.2d 852 (1st Cir. 1989).

A few weeks back, the appellate court rejected a deaf driver's claim of entitlement to an interpreter during a  DWI arrest.  Who's next?

Intoxilyzer Source Code "Victory"

State v. Underdahl, Minn.S.Ct. 4/30/2009.  This is a combined appeal; the alleged DUI offenders who sought the source code are Dale Underdahl and Timothy Brunner. The upshot of the opinion is that if you say the magic words you get the source code.  That is, you get the source code if and when the Department of Public Safety can wrestle it away from some outfit in Owensboro, Kentucky.  As a matter of law, however, the appellate court says that the Department has "possession" of that code.

I've written about this ongoing battle here and here and maybe elsewhere, I've lost track.  I'm done.  Here's what Mr. Brunner submitted in support of his request for the code:

Appellant Brunner submitted a memorandum and nine exhibits to support his request for the source code. The memorandum gave various definitions of “source code.” The first exhibit was the written testimony of David Wagner, a computer science professor at the University of California in Berkeley, which explained the source code in voting machines, the source code‟s importance in finding defects and problems in those machines, and the issues surrounding the source code‟s disclosure. The next exhibits detailed Brunner‟s attempts to obtain the source code, both from the State and CMI. The last exhibit was a copy of a report prepared on behalf of the defendants in New Jersey litigation about the reliability of New Jersey‟s breath-test machine. See State v. Chun, 943 A.2d 114 (N.J. 2008). The report analyzed the New Jersey machine‟s computer source code and uncovered a variety of defects that could impact the test result

This is a sufficient showing under Rule 9.01, subd. 2(3) of the Rules of Criminal Procedure.  Counsel, get those boilerplates humming.

Predatory Offender Registration Applies to Kidnapping Committed to Collect Ten Day Old Drug Debt.

State v. Lopez, Minn.Ct.App., 4/28/2009.  The Lopez brothers arranged to sell a quantity of methamphetamine to a fellow who turned out to be a confidential informant.  The agreed upon price was $600.00.  When the deal went down, the CI not only purchased the drugs for $600.00; he went on to broker a side deal for a bit more meth, for three hundred more dollars to be paid at a later date.  Ten days later the CI called his law enforcement minder to report that Mr. Lopez was holding him hostage in lieu of payment of the balance.  The deputy coughed up the money but made Mr. Lopez drive over to the local ball field to collect it; Mr. Lopez took the CI along with him.  The state charged Mr. Lopez with aiding and abetting the drug offense and with aiding and abetting kidnapping.  Mr. Lopez negotiated a plea to the drugs and a dismissal of the kidnapping.

The trial court said that Mr. Lopez had to register as a predatory offender because the drugs conviction arose out of the same circumstances as the kidnapping charges.  Minn.Stat. 243.166, subd. 1b(a)(1).  The appellate court was okay with that conclusion.  The complaint had charged Mr. Lopez with aiding and abetting kidnapping for the purpose of facilitating the commission of a felony, in this case, the drugs offense.  It didn't matter that the drug offense was complete after the first meeting; the meeting and delivery ten days later of the remaining $300.00 was just a completion of the completed drug offense. 

Mr. Lopez has to register.

ATF Weapons "Trace" Reports are Not Testimonial under Crawford.

State v. Jackson, Minn.Ct.App., 4/28/2009.  Three masked men, one of whom sported a shotgun, stormed the rear door of the Beehive Tavern shouting, "This is a stick up!".  Well, sort of.  The proprietor seemed to know that the guys were coming; he got off seven rounds from his handgun and that was that.  The three men beat a hasty retreat.  Police arrived and shortly thereafter found Mr. Jackson and a shotgun in a nearby alley.

The state introduced a "trace" report from the Department of Alcohol, Tobacco & Firearms.  This report identified the original purchaser of the shotgun; it also identified "recovery information", which stated that the shotgun had been recovered from Mr. Jackson in the alley near the Beehive Tavern on the date of the robbery. 

On appeal, Mr. Jackson argued that admission of this report violated his right of confrontation under Crawford.  The appellate court disagreed, for several reasons.  First, the report was not created for litigation but is a record that is maintained in the ordinary course of business. (The appellate court makes the rather incredulous statement that ATF "did not expect the firearm-trace report would be used prosecutorially.")   Second, it may qualify under the business records exception, although this is likely not enough to satisfy Crawford.  See State v. Johnson, 756 N.W. 2d 883 (Minn.Ct.App. 2008).  Along the way, the appellate court distinguished State v. Caulfield, 722 N.W.2d 304 (Minn. 2006) (BCA report on identification of narcotic is testimonial); and State v. Weaver, 733 N.W.2d 793 (Minn.Ct.App. 2007) (hospital lab report prepared as part of an autopsy is testimonial).  In both of those cases, the report was prepared for the purpose of prosecuting the defendants.

Prosecutor's Request for Lawyers for Defense Alibi Witnesses Gets the Court's Nod

State v. Graham, Minn.S.Ct., 4/23/2009.  This is a lengthy opinion that ultimately affirms a murder one conviction.  The main issues are the propriety of the prosecutor's request to the court to appoint independent counsel to advise two defense alibi witnesses; and rulings on various evidentiary rulings.  That said, there's nothing for it but to slog through this.

Paris Furcron was in the middle of buying some weed when two men - one tall, the other short - burst in through the back door of the house where the deal was going down.  The two men were apparently undertaking an armed robbery.  Mr. Furcron "tussled" with the tall man, who turned out to be Mr. Graham, over the gun, during which shots were fired.  Mr. Furcron died shortly thereafter.  Several of the people who were at the house were able to identify Mr. Graham from a sequential photo array.

State's Request to Appoint Counsel for Defense Alibi Witnesses:  Nine months after the grand jury indicted Mr. Graham on first degree murder and various other charges, he produced two alibi witnesses, his former girlfriend and her mother.  Each intended to testify that Mr. Graham had been at their home at the time of the shooting.  The state knew, however, that at the time of the shooting Mr. Graham was under a no contact order to stay away from the girlfriend; she was also the victim of a terroristic threats charge committed by Mr. Graham.  He had also coached her on what to say in order to clear him of the terroristic threats charge.  (The coaching did not work as Mr. Graham plead guilty to the terroristic threats charge.)  All of this convinced the state that these alibi witnesses were about to commit perjury for starters, and aiding an offender as well.  The state convinced the trial court to appoint independent counsel for them; they very quickly lawyered up and invoked their Fifth Amendment rights.  The defense called foul - interference with the right to present a defense.

The Court acknowledges that it's a thin line between state intimidation of defense witnesses and protecting a witness from self incrimination.  A self incrimination warning crosses that line when it "precludes [the witness] from making a free and voluntary choice whether or not to testify."  Here, the Court faces a variation on this theme:  when is it improper for the state to suggest that a defense witness should be appointed an attorney to give advice about possible self-incrimination? 

The Court adopts a two part test to determine whether the state acts properly in seeking the appointment of independent counsel for defense witnesses:

First, the State must be able to point to facts that support a reasonable and substantial belief that the witness will offer false or self-incriminating testimony. Second, once the State has demonstrated a reasonable basis for believing a witness’s testimony may be false or self-incriminating, the warnings of self-incrimination must be given in an appropriate manner, so as not to preclude a witness’s free and voluntary choice to testify by exerting undue distress on the witness.

The Court concludes that the state had satisfied both parts of the test it just adopted.  The facts cited satisfied the first part of the test.  The state's concerns were made directly to the court, out of the presence of the two witnesses and thereafter the state never spoke with them out of the presence of appointed counsel; this procedure satisfied the second part of the test as well.  It remains to be seen, of course, whether this practice will catch on, or whether it is an outlier. 

Evidentiary Rulings:  Mr. Graham also argued that the state had engaged in misconduct by some of its objections to defense questions of its witnesses.  The court ducks the question whether this is even possible but does address the objections. 

Defense counsel wanted to impeach a witness with statements attributed to him in a police report.  Counsel asked the witness if he had uttered a statement that counsel then read verbatim from the report.  The trial court sustained the prosecutor's objection.  The appellate court finds no abuse of discretion with this ruling, relying on Rule 613 of the evidence rules.  The problem was the form of the question; Rule 613(b) prohibits counsel from impeaching a witness by extrinsic evidence - in this case, reading verbatim from a third-party summary that purported to state what the witness actually said.  Reading the statement verbatim can only be done when the witness has adopted the verbatim statement attributed to him by the third party as his own. 

Defense counsel can ask the witness whether he said certain things to the officer, in essence paraphrasing the report.  If the witness does not recall making the statement or denies making it, then counsel can call the author of the report (most always a risky business).  Indeed, defense counsel did ask a different witness whether he had told an officer a specific fact, a question based on that officer's written summary.  This question was proper.

In another instance, defense counsel asked a witness if he recalled talking to a named officer; the witness said that he did not recall such a conversation.  Counsel left it at that, then later wanted to ask the named officer the details of the conversation.  The trial court sustained the prosecutor's objection and the appellate court upheld the ruling.  This was because the witness had not been given the opportunity to admit or deny the specific statements; counsel could not thereafter ask the officer if the witness had made those specific statements.

In yet another instance, defense counsel sought to impeach a witness by use of a defense-prepared transcript of a recorded interview; the state apparently didn't have a copy of this transcript.  Even so, the appellate court concluded that the trial court was wrong to have precluded the introduction of inconsistent statements, either from the transcript or from the recording, itself.

An Unlicensed Prosecutor is Okay:  Finally, the court decides that a conviction obtained by a prosecutor who was unlicensed to practice law at the time of the conviction should be set aside only when the defendant is able to show prejudice that warrants reversal.  Having already concluded that there had been no prosecutorial misconduct, Mr. Graham cannot show such prejudice.  I guess the prosecutor had stayed at a Holiday Express.

Officer's Terry Stop Is Not Supported by Particularized Suspicion of Criminal Activity.

In the Matter of the Welfare of:  T.A.R., Minn.Ct.App., Unpublished, 4/14/2009.  Police responded to a "shots fired" call at around 8:30 in the evening; the caller gave no description of the shooter.  An officer arrived in the area within a couple of minutes; he had a hunch where a possible shooter might be and followed that hunch.  The officer saw T.A.R. walking down the street; the officer, gun drawn, first tried to make eye contact with T.A.R.  When that failed, he had T.A.R. lift up his shirt and undershirt, which revealed a handgun in the waistband of T.A.R.'s pants.  The trial court denied his motion to suppress evidence of the possession of the gun.

The Court of Appeals reverses, failing to find a particularized, reasonable suspicion of criminal activity.  Appelgate v. Comm’r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987).  Appelgate recites six factors that LaFave has identified as pertinent to stops of persons near crime scenes:

LaFave isolates six factors that may be taken into account in determining the propriety of the stop of a motor vehicle in such a situation: (1) the particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the number of persons about in that area; (4) the known or probable direction of the offender‟s flight; (5) observed activity by the particular person stopped; and (6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.

The appellate court concluded that the only objective basis that the officer had for stopping T.A.R. was his presence in the area in which the shooter might be found.  This was not, however, enough to have justified the stop.

Statements Properly Suppressed After Equivocal Request for Counsel

Minnesota v. McKinnie, Minn.Ct.App., Unpublished, 4/14/2009.  Police arrested Mr. McKinnie on suspicion of robbery, assault and second degree murder.  During a custodial interrogation, Mr. McKinnie stated that he could not afford at attorney in response to the Miranda warning.  Eventually, the interrogating detective incorrectly told Mr. McKinnie that he would not have an attorney appointed to represent him until he made his first court appearance.  In the remainder of this first interrogation, as well as in a second interrogation, Mr. McKinnie made incriminating statements.  The Court of Appeals upholds the trial court's ruling suppressing both statements, but reverses the trial court's ruling that the statements could not be used for impeachment in the event that Mr. McKinnie testified.  See State v. Slowinski, 450 N.W.2d 107, 111 (Minn. 1990).

The Miranda colloquy is worth setting out:

The Constitution requires that I inform you that you have the right to remain silent. Anything you say will be used in court as evidence against you. You are entitled to talk to a lawyer now. And have him present now. Or at any time during questioning.
. . . .
If you cannot afford a lawyer, one will be appointed for you without cost.
Respondent immediately responded, “I can‟t afford one.” The following exchange between the detective and respondent then took place:
Q. Do you understand these rights?
A. Yes I do.
3
Q. All right. Do you wish to talk to me at this time?
A. I will talk to you.
Q. Okay.
A. But I still can‟t afford a lawyer.
Q. Oh. Okay. Well that‟s . . . but you wanna talk to me right?
A. Yeah. I‟ll talk to you.
Q. Okay.
A. I have no problem with it.
. . . .
A. . . . I don‟t have no money for no lawyer because I lost my job.
Q. . . . if you can‟t afford one the state will afford a lawyer for you.
A. Can he be here right now?
Q. That‟s your choice Danya.
A. Could he be right now though?
Q. Do you want a lawyer?
A. (Inaudible).
Q. No not right now. Not right now. If you want a . . . lawyer while in questioning.
A. Mhm-hum. And represent I have to sit here.
Q. But no. If you wanna talk to me you can talk to me.
A. No. What I‟m---no what I‟m asking is if I had to wait on a lawyer I would have to sit here (inaudible) until he got here right?
Q. Right.
Next, the detective attempted to explain to respondent how an attorney would be appointed:
Q. When you went to court then a lawyer will be appointed for you at that time. Okay. That‟s how it works.
A. Okay.
4
Q. You can‟t get a court appointed . . . lawyer . . . the way I understand it until you‟ve been charged with something.
A. No because I would like you know what I‟m sayin‟? What‟s that that they do consultants and everything like---we---talk to somebody or whatnot. It is like a consultant.
Q. . . . I don‟t know anything about that Danya. I don‟t.
A. Because I don‟t wanna sit here. . . .

 

Here, the interrogating detective went beyond asking questions to clarify Mr. McKinnie's equivocal request for counsel.  State v. Risk, 598 N.W.2d 642 (Minn. 1999).  The trial court properly suppressed the resulting statements.  State v. Robinson, 427 N.W.2d, 217, 222 (Minn. 1988).

After Probation Term Expires, Juvenile Court Lacks Jurisdiction to Order Restitution

In the Matter of the Welfare of:  H.A.D., Child, Minn.S.Ct., 4/16/2009.  A year, it's reassuring to know, is just that.  A juvenile court placed H.A.D. on probation for one year after she pleaded guilty to fifth degree assault.  The juvenile court said that "As long as [H.A.D.} is on probation a claim for restitution can be filed."  This opened the floodgates for several requests for restitution.  By the time all the paperwork hit the clerk's office, poor H.A.D. was looking at nearly six thousand dollars in restitution request.

Fortunately for H.A.D., (but not so much for the likes of Blue Cross Blue Shied, one of the restitution supplicants), the juvenile court did not actually order payment of even a single dollar during the one year term of probation.  The paperwork was there but no order. This should have been the end of it, but the juvenile court had tried to extend that original one year term in order to impose the restitution.  It's that extension that is in play here.   The reasoning gets a little tricky so let's start a new paragraph.

The court's disposition order was dated March 20, 2006.  (On March 23, 2006, the court issued its written disposition order (which was totally silent about restitution), but everyone agreed that the one year term of probation began on March 20, 2006.)  On March 20, 2007, the juvenile court issued an order which extended H.A.D.'s probation term for another six months.  The restitution order followed on June 6, 2007.  So, if the extension order of March 20, 2007 was valid, then H.A.D. is on the hook for that lucre. 

The state suggested that the year didn't end until March 20, 2007.  By this logic, any January 1 is actually part of the previous year.  This court dismisses this suggestion and holds that the  extension order was not valid.  The one year term ended on March 19, 2007, not on March 20.  The juvenile court's authority to extend probation expired when the probation term ended.  Minn.Stat. 260B.198, Subd. 9.  As a result, the court lacked any authority act.  After all, the Supreme Court explained, "expressio unius [est] exclusio alterius."    Really, it's what they said.

If all this sounds vaguely familiar, it is.  The Court of Appeals had basically this same jurisdictional question a couple of weeks back.  Go here to read about that.

Okay, okay, want to know what the Latin means?  Nelson v. Productive Alternatives, Inc., 715 N.W.2d 452, 457 (Minn. 2006) (explaining the canon of statutory construction “expressio unius [est] exclusio alterius,” meaning the expression of one thing is the exclusion of another).

Goddam money. It always ends up making you blue as hell.
J. D. Salinger
The Catcher in the Rye.

Unpublished Potpourri, Minnesota Court of Appeals

DUI Source Code

Chastek v. Comm. of Public Safety, Unpublished, Minn.Ct.App., 4/7/2009.  The court rather cursorily dispenses with this denial of source code appeal, for the usual reasons.  For the most recent posts on this subject go here and here.

Eyewitness Identification

State v. Dean, Unpublished, Minn.Ct.App., 4/7/2009.  Mr. Dean complained that officers assembled the photographic array around his appearance, rather than from the witness descriptions of the alleged perpetrator as required by the police protocol.  He also complained that the officer who administered the array knew which picture was Mr. Dean, contrary to the department protocol.  The Court of Appeals rejects both of these contentions.  All that Minnesota law currently requires is that persons in the array must bear a reasonable physical similarity to the accused; that Hennepin County has adopted a different protocol does not make the failure to adhere to that protocol a basis to suppress the resulting identification.  Likewise with the administrator knowing which picture was Mr. Dean.  Moreover, the court characterized this as only a "slight deviation" from that protocol.  Finally, that the administrator asked the witness if he knew someone with Mr. Dean's name before administering the display - again, in violation of the protocol - does not require suppression.  After all:

This is because “[a] witness who has been asked to view a photo display has probably already assumed that a suspect has been found and that one of the photos is of that suspect."

State v. Porter, 411 N.W.2d 187, 190 (Minn. App. 1987).  Oh dear.  The current protocol that the Minneapolis Police Department utilizes when conducting eyewitness identifications can be found here.  Scroll down to Section 10-208.01 Sequential Identification Photographic Lineups (10/14/05). 

_____________________

State v. Harris, Unpublished, Minn.Ct.App., 4/7/2009.  Officers put Mr. Harris in a "show-up" following his apprehension near the location of a reported burglary.  He moved to suppress the resulting identification; the trial court denied the motion.  Here's how the "show up" went down:

Appellant contends that the one-person show-up conducted in this case was unnecessarily suggestive because he was singled out based on a description that referred to the suspect’s race, he was handcuffed and placed in a squad car, he was told to step out of the squad to be viewed by the victims, and he was flanked by an officer during the identification.

The officer said that he "took care" not to tell the witness that Mr. Harris was either a suspect or the person who committed the crime.  This seemed to satisfy both the trial court and the court of appeals, notwithstanding some case law that at least suggests some problems.  The court has just recently held that a show up of a suspect in handcuffs was unnecessarily suggestive.  In re Welfare of M.E.M., 674 N.W.2d 208, 215 (Minn. App. 2004). 

The Dallas Police Department is not so enamored of "show ups."  For more, go here.

Erroneous Exclusion of Defense Expert Testimony Challenging Protocols for Interviews of Child Victims of Sexual Abuse Requires New Trial

State v. Hakala, Minn.Ct.App., 3/31/2009.  This is an appeal from a criminal sexual conduct prosecution.  The victims are described as "pre-teens."  The social worker who interviewed the victims testified, emphasizing her credentials and the interview techniques that she employed.  The trial court would not permit the defense to call an expert to challenge the validity of those interview techniques and protocols.  The trial court thought that such testimony would send a signal to the jury that the children were not telling the truth and so excluded the testimony.  The appellate court reverses the conviction on the basis of this ruling and remands for a new trial.

The Minnesota Supreme Court long ago held that a juror's common experience is not adequate for assessing the credibility of a child's allegations of sexual abuse.  State v. Myers, 359 N.W.2d 604 (Minn. 1984).  The helpfulness requirement for admission of expert testimony is thus satisfied.  In the Myers case, it was the state that sought to introduce expert testimony, which had the additional benefit of bolstering the child victim's credibility.  Turn about is fair game after all.  The trial court abused its discretion by excluding the expert testimony.

The error was also not harmless.  The social worker who interviewed the victims got to describe the interview techniques and protocols, implying that the statements were obtained by an expert who employed valid - and truthful - techniques.  The interviewer was thus a de facto expert witness; preventing the defense from presenting a contrary view of the techniques denied Mr. Hakala the opportunity to present a complete defense,and thus denied him a fair trial.  Consequently, the probative value of the defense expert's testimony outweighed any prejudicial effect, so both requirements for introduction of expert testimony were met.

Failure to Impose Conditional Release Term is Not Basis on Which to Withdraw Plea

Oldenburg v. State, Minn.Ct.App., 4/7/2009.  This post conviction petition challenged the after market instillation of a conditional release term on grounds that it was not part of the plea agreement.  Back a few years ago, there were a slew of cases on this issue, such as State v. Jumping Eagle, 620 N.W.2d 42 (Minn. 2000); Ms. Oldenburg's plea arose in the midst of that litigation.  The basic rule to come out of all that litigation is this:

If the addition of a mandatory conditional-release term after sentencing and without prior notice would exceed the maximum length of an executed sentence set forth in a plea agreement, the addition of the term violates the plea agreement.

Ms. Oldenburg pled guilty to first degree DWI.  The written plea petition specifically alerted Ms. Oldenburg to the conditional release term, the Guidelines Worksheet alerted her to it, but the pre-sentence investigation report did not.  No one mentioned it during the plea colloquy.  At sentencing, the court stayed Ms. Oldenburg's thirty-six month sentence, with no mention of the conditional release term.

Four years later, Ms. Oldenburg appeared on several probation violations.  She admitted the violations, the court executed the previously stayed sentence; the court did not impose the conditional release term.  The Department of Corrections, however, did impose it.  This prompted Ms. Oldenburg to petition the trial court either to withdraw her plea or to have her sentence modified.  She got neither.

The inclusion of a conditional release term is sort of a sleeper provision in the DWI statute.  It's found in Minn.Stat. 169A.276, Subd. 1(d).  If nothing else, this case is a reminder of that requirement. 

Ms. Oldenburg loses because the appellate court did not think that the plea agreement contained a "maximum length of an executed sentence."  The appellate court viewed the plea agreement as totally wide open.  Here's how the state described the agreement:

Your Honor, I think we have this matter resolved. Ms. Oldenburg will be pleading guilty to the Count 1 Charge of Felony DWI, the state is agreeing to dismiss the remaining counts at time of sentencing, with sentence open to the court and argument by counsel.

The appellate court concluded that this agreement said nothing about the duration of Ms. Oldenburg's sentence.  It apparently declines to infer such a duration from the district court's thirty-six month sentence, which would be the Guidelines sentence for a DWI conviction of one with zero criminal history score.  That being the case, it's easy for the appellate court to conclude that the later addition of the conditional release term did not violate that agreement.  Presumably, any mention in the agreement of the Guidelines would have sufficed to tether the agreement to a specific duration.

In Prosecution for Possession of a Firearm by Ineligible Person, Error in Admitting For Impeachment Purposes Defendant's Prior Conviction for Same Offense Was Harmless.

 State v. Jones, Minn.Ct.App., Unpublished, 3/31/2009.  During a party that Mr. Jones and his girlfriend hosted, they began to argue.  During the argument, Mr. Jones brandished a gun.  A guest at the party saw Mr. Jones with the gun.  Police found a gun under the hood of a car that was parked in Jones' garage; forensic testing found Jones' partial DNA profile.  The state charged Mr. Jones with assault and with possession of a firearm by an ineligible person.  At trial, the trial court ruled that Mr. Jones could be impeached by evidence of a four year old conviction of the same offense. In light of that ruling, he decided not to testify.

In exercising its discretion to admit or exclude evidence of a prior conviction for impeachment purposes the court is to consider what's come to be known as the Jones factors, State v. Jones, 271 N.W.2d 534 (Minn. 1978):

1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant‟s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant‟s testimony, and (5) the centrality of the credibility issue.

The appellate court assessed each of the factors, starting with (1)the impeachment value.  The trial court had found that impeachment value was high:

I think the jury should be given an opportunity to review the entire person here. They should not be given the misimpression that [Jones is] not capable of committing this offense. Since obviously he has been convicted of it before.

Minnesota opinions have relied upon an "entire person" rationale to conclude that impeachment value is high; also, the prior offense need not involve dishonesty.  Nonetheless, because Mr. Jones' prior offense has no aspect of dishonesty it lacks any significant impeachment value beyond this "entire person" rationale.  More troubling to the appellate court was the trial court's remark that the prior conviction showed Mr. Jones' capability of committing the charged offense.  The purpose of admitting evidence of a prior conviction, the appellate court pointed out, is limited to helping the jury decide whether a defendant is telling the truth when testifying.  So, this factor provides only "slight support" for admission.

The next factor, (2) age of prior conviction, weighs in favor of admission.  Not only was the conviction just four some years old, Mr. Jones had only been out of prison on that prior conviction for two months; the prior conviction thus had more probative value than an older conviction. 

The court next looked at (3) the similarity of the past crime to the charged crime.  Here, it's identical, not just similar.  It thus weighs "very heavily" against admission.  The next factor, (4) importance of Mr. Jones' testimony, although a "close call" weighs "slightly against" admission, even though Jones' girlfriend testified that he did not have a firearm.  The last factor - centrality of Jones' credibility - weighed in favor of admissibility, even though the appellate court was somewhat dismissive of the trial court's rationale in reaching the same conclusion.

The winner, please:

Here, the “whole person” rationale lends relatively weak support for admission under the first factor, impeachment value, particularly given that the prior conviction was not for a crime of dishonesty. The second factor, the age of the prior conviction, and the fifth factor, the centrality of Jones‟s credibility, weigh more strongly in favor of admission given that the prior conviction is relatively recent and his credibility is important because of the testimony of the other witnesses. But the third factor, the similarity of the crime charged, weighs very heavily against admission due to the degree to which Jones would be prejudiced by the admission of evidence of his prior conviction that is not merely similar, but identical, to one of the charged offenses. The nature and severity of this potential prejudice is illustrated by the district court‟s misguided reliance on the proposition that the prior conviction would demonstrate that Jones was “capable of” the current crime. And the importance of the defendant‟s testimony, the fourth factor, also weighs slightly against the admission of this impeachment evidence.

Because the third and fourth factors weigh "heavily against" admission, it was error to admit the prior conviction.  (Just how the fourth factor jumped from "slightly against" to "heavily against" isn't explained.)  But, to Mr. Jones' dismay, I'm sure, the error was harmless.

A Threat Must be to Commit a Future Crime of Violence.

State v. Brevik, Minn.Ct.App., 3/31/2009.  Unpublished.  Mr. Brevik and his wife argued over water damage to the basement of their house.  During the argument, Mr. Brevik apparently mooned the misses, then left the house.  Mrs. Brevik found him sitting in Mr. Brevik's van.  They argued some more;  Mr. Brevik threw Mrs. Brevik's wallet out of the van; she called him a jerk.  Mr. Brevik drove the van in the general direction of his wife, stopped five feet from her, backed the van away.  He repeated this movement a short while later - this time edging to within two feet of his wife and (now) his son - after Mrs. Brevik called her husband a goddamned asshole.  Mr. Brevik then left.  Hours later, upon his return, Mr. Brevik went to the couple's bedroom and sulked.  Thinking that enough is enough, Mrs. Brevik called the police.  The state charged Mr. Brevik with assault and terroristic threats.  The jury convicted him of both.

The appeal issue is sufficiency of the evidence.  For the assault, there was ample evidence.  Not so much for the terroristic threats. Mr. Brevik never verbally threatened Mrs. Brevik so his actions must suffice, if at all, to prove that charge. 

“A threat is a declaration of an intention to injure another or his property by some unlawful act.” State v. Schweppe, 306 Minn. 395, 399, 237 N.W.2d 609, 613 (1975). A threat may be communicated by words or acts, but it “must be to commit a future crime of violence.” State v. Murphy, 545 N.W.2d 909, 916 (Minn. 1996).

The appellate court concluded that Mr. Brevik's driving did not convey a "clear message" that he was capable of coming back and doing something more serious.  As such:

the evidence of Brevik‟s conduct is insufficient to permit a reasonable inference as to what future “crime of violence” would be deterred by also convicting Brevik of terroristic threats.

The appellate court reverses the terroristic threats conviction.

Still No Intoxilyzer Source Code

State v. Kuklok, Minn.Ct.App., Unpublished, 3/31/2009.  Still no source code for the Intoxilyzer.  Mr. Kuklok's preliminary breath test result was .193.  He agreed to submit to a breath test, using the Intoxilyzer, which registered 0.20.  He procured an order from the district court for the state to provide the source code.  The state filed a pretrial appeal.

The Court of Appeals reversed the trial court order, finding it to have abused it discretion.  It relied primarily upon its decision in Underdahl II, State v. Underdahl, 749 N.W.2d 117 (Minn.Ct.App. 2008), review granted, (Minn. Aug. 5, 2008).  Here, Mr. Kuklok had submitted documents and affidavits which explained what a source code was and how it related to the proper operation of the machine.  However, he did not connect the dots between the result in his case and the information that the source code would provide.  And, oh, by the way, the state doesn't have the code anyway.

District Court Can Forfeit Bail Bond Without a Hearing

State v. John Vang, Integrity Bonding Company, Minn.Ct.App., 3/31/2009.  This is just barely a criminal case, but, after all, the bail bonding company is a defendant's friend.  The bonding company put up ten large for Mr. Vang.  Mr. Vang skipped out on his sentencing hearing.  The bonding company went looking for him, without success, but kept the trial court more or less informed of its efforts.  The bonding company threw in the towel on finding Mr. Vang but requested reinstatement of its money anyway, in support of which it recited its efforts to find Mr. Vang.  The trial court forfeited all but $500.00 of the bail, and did so without a hearing.  This annoyed the bonding company.

There's actually a rule on this, Minn.R.Gen.Pract. 702(f).  The rule doesn't say anything about holding a hearing.  So, the appellate court reasoned, unless you ask for a hearing you don't get one.  Or, at least, if you don't get one you can't complain about it.  End of story.  The appellate court also said that the trial court did not abuse its discretion by reinstating only $500.00 of the bail.

Where's Stephanie Plum when you need her?

I handed him my business card. "I represent Vincent Plum Bail Bonds. You've missed your court date, and we'd appreciate it if you'd reschedule."
"No," Briggs said.
"Excuse me?"
"No. I'm not going to reschedule. No. I'm not going to court. It was a bogus arrest."
"The way our system works is that you're supposed to tell that to the judge."
"Fine. Go get the judge."
"The judge doesn't do house calls."
"Listen, I got a lot of work to do," Briggs said, closing his door. "I gotta go."
"Hold it!" I said. "You can't just ignore an order to appear in court."
"Watch me."

High Five, Janet Evanovich, St. Martin’s Paperbacks (2000).

Constitutional Challenge to Asset Calculations is Rejected; Conviction for Wrongful Receipt of Public Assistance is Affirmed.

State v. Basal, Minn.Ct.App., 3/31/2009.  I'm sorry, but I'm only hitting the high spots here; if you want to know the gritty details you'll have to read the Opinion.  Ms. Basal receives public assistance benefits, has for years.  Annually, she reported her eligibility for continued benefits, including a listing of assets, like cars.  She reported having a 1997 Plymouth Voyager; she did not report the other three cars, one of which was a 1998 Mazda  626, that she also owned.  Had she done so, she would not have ben eligible for benefits.  Ms. Basel opted for a bench trial on charges of wrongfully obtaining public assistance; the bench convicted her.  The issue at trial an on appeal was how to treat the value of her vehicles in determining whether she had too many assets to remain eligible for assistance.

There are limits on what assets a recipient of public assistance may have, and the value of those assets.  One such asset is a car.  The legislature determines whether and how assets, like Mazda 626's, affects a person's eligibility for public assistance.  Minn.Stat. 256J.20, subd. 3.  After her conviction, Ms. Basal challenged this statute as unconstitutionally vague.  As best I can determine, the first $7,500.00 of a vehicle's market value doesn't count in asset calculations; all amounts above that do count.  Ms. Basal argued that because other assets - that aren't cars - are treated differently there is either a due process or an equal protection violation.  The appellate court rejected this argument.

Ms. Basal also argued that she should have got the benefit of a subsequent amendment - that is, it was enacted after the period during which the state alleged that she was unlawfully receiving benefits - to the vehicle asset determination, in which case she would be eligible for benefits.  The appellate court rejects this argument as well, although it suggests that the amendment could impact any restitution obligation.

More Dueling Banjos: Waiver under "Lothenbach" (Rule 26.01, Subd. 4) Has to be of Everything

State v. Antrim, Minn.Ct.App., 4/7/2009.  Here's a published Opinion that presents a variant of the problem that I wrote about a week or so back, describing an unpublished Opinion, State v. McKissic, 2009 WL 6700040.  The McKissic court conflated two criminal rules, 26.01, subd. 3 & 4.  Here, the court tried to stay with just the one rule, but fails to elicit all of the requisite waivers required under that rule.  Once again, the appellate court reverses the conviction and remands back to the trial court for a redo.

Police responded to a burglary call and found Ms. Antrim behind some bushes beside the house.  Police found Ms. Antrim's purse inside this unoccupied house; more problematic, they found methamphetamine inside the purse.  Ms. Anatrim unsuccessfully moved to suppress evidence of the drugs.  Thereafter, she, the lawyers, and the court tried to carry out a stipulated facts trial that preserves the right to appeal a pretrial ruling, erroneously (but fondly) known an a Lothenbach trial, but properly a "Rule 26.01, subd. 4 something or other."  Let's recall what this rule says:

The defendant and the prosecuting attorney shall acknowledge that the pretrial issue is dispositive, or that a trial will otherwise be unnecessary if the defendant prevails on appeal. The defendant, after an opportunity to consult with counsel, shall waive the right to a jury trial under Rule 26.01, subdivision 1(2)(a), and shall also waive the rights specified in Rule 26.01, subdivision 3. The defendant shall stipulate to the prosecution’s evidence in a trial to the court, and acknowledge that the court will consider the prosecution’s evidence and may find the defendant guilty based on that evidence. The defendant shall also acknowledge that appellate review will be of the pretrial issue, but not of the defendant’s guilt, or of other issues that could arise at a contested trial. The defendant and the prosecuting attorney must make the foregoing acknowledgements personally, in writing or orally on the record.

[Emphasis added.]  The rights referenced in Subd. 3 include the right to require any favorable witnesses to testify for the defense in court.  This one got left out during the colloquy.  The appellate court reiterates its requirement of  "strict compliance" with the Subd. 3 waiver list.  State v. Knoll, 739 N.W.2d 919 (Minn.Ct.App. 2007).  The state suggested various work arounds for this omission but the appellate court wasn't interested in any of them.  Ms. Antrim gets a redo.

Oh, the appellate court didn't rule on the suppression issue.

E.J.J. Probation Violations Must be Alleged Before Age Twenty-One.

  State v. J.E.S., Minn.Ct.App., 3/24/2009.  JES pled guilty to attempted aggravated robbery.  The district court designated him as an extended jurisdiction juvenile (EJJ).  There were numerous conditions.  Time goes by.  On May 22, 2007, police arrested JES.  They had two reasons for doing so.  First, there were alleged probation violations, including riding the bus without paying, which probably wouldn't have happened had JES been gainfully employed, another alleged violation.  They also arrested JES on suspicion of committing criminal sexual conduct.  During the obligatory search incident to the arrest, police found a TASER in JES's pocket.

The following day, the juvenile court revised the probation violation report to include the arrest on the sex offense; it did not mention possession of the TASER.  More time goes by.  In August, JES turned twenty-one; in October, a jury acquitted him on the sex offense.  JES thought it was time to say good by to his EJJ PO.  JES moved to be discharged from EJJ but the juvenile court said, no.  The revised probation violation report, the court said, tolled the term of EJJ probation.  Time continues to go by.

In November, the juvenile court finally got around to alleging possession of the TASER as a probation violation.  JES's lawyer said, "Gotcha!" on the TASER allegation because it had been made after JES turned twenty-one.  Again, the juvenile court said, no, revoked probation and executed the stayed adult sentence (of forty-eight months).  On appeal, the defense "Gotcha!" carries the day.

By statute, EJJ jurisdiction only extends to the juvenile's twenty-first birthday.  Minn.Stat. 260B.193.  Nonetheless, a juvenile court has jurisdiction after age twenty-one to complete an EJJ probation revocation that was "commenced" before that birthday.  In re Welfare of V.D.M., 623 N.W.2d 277, 280 (Minn. App. 2001).  So, when is a probation revocation "commenced"?

Read the rule. 

A revocation proceeding is "commenced" by the issuance of a warrant or summons that, in turn, is based upon a written report that describes "the facts and circumstances upon which the request for revocation is based."  Minn. R. Juv. Delinq. P. 19.11, subd. 1(A).

The appellate court said that while there were other allegations made in support of revocation -not paying the bus fare - the TASER allegation did not get made until after JES's twenty-first birthday.  The juvenile court simply had no authority to base revocation on possession of the TASER, because that allegation did not get made until after JES turned twenty-one.  The appellate court sent the case back to the juvenile court to answer the question whether not paying the bus driver sufficed to impose a forty-eight month prison sentence.

The Existence of an Emergency is an Element of the Offense, Interference with Emergency Call.

State v. Hersi, Minn.Ct.App., 3/31/2009.  Mr. Hersi argued with his wife because he believed that she was sacrificing some quality time with the kids and him in order to chat way too long on the phone with a friend.  Each threw things - apparently the telephone in question -  at the other, resulting, perhaps, in damage to the phone.  The wife tried to throw something with a bit more heft -  a vacuum cleaner - at Mr. Hersi but he snatched it away from her.   At this point a grown up who was also in the apartment sent the couple to separate parts of the apartment.  While Mr. Hersi was in the bedroom, the wife called 911 from another room but, for once, didn't say anything on the phone.  Police came by anyway.  They arrested Mr. Hersi for gross misdemeanor interfering with a 911 call and for misdemeanor assault.  The jury acquitted Mr. Hersi on the later but convicted him on the former.  The main question on appeal had to do with the court's instructions on the 911 interference charge.

The statute, Minn.Stat. 609.78, prohibits the intentional messing with an "emergency call."  Such calls include 911 calls, but generally encompass any call for emergency medical (including an ambulance), police, fire or other assistance.  So, if you're bit by a rattlesnake and you call your neighbor to tell her to call the paramedics, you've made an "emergency call."  You've made the right kind of call, and the emergency actually exists.

The problem here (for the state) is that the jury instruction omitted any mention of an emergency actually existing.  Cf., Minn.Stat. 609.78, subd. 3, which defines what is an "emergency call."

(1) a 911 call;

(2) any call for emergency medical or ambulance service; or

(3) any call for assistance from a police or fire department or for other assistance needed in an emergency to avoid serious harm to person or property,

and an emergency exists.

Emphasis added.  Despite the state's assertion to the contrary, the Court of Appeals says that the existence of an emergency is an element of this offense, so the failure to instruct on that error was a mistake.  The evidence of the existence of that emergency is conflicting, and the jury acquitted Mr. Hersi on the assault charge.  So, he's entitled to a new trial.

The court goes on to conclude that the evidence was sufficient to support the conviction.  The officers who came over had a different account of what the wife had to say, testifying that she told them that Mr. Hersi had taken the phone away from her as she was calling 911 and then broke it.  This was enough, the Court concluded, for the jury to convict.