Life Without Possibility of Release Not Unconstitutional When Imposed Upon Juvenile; Another Batson Claim is Rejected.

State v. Martin, Minn.S.Ct., 10/8/2009.  A jury convicted Mr. Martin of first degree premeditated murder, and crime committed for the benefit of a gang; the court sentenced him on the premeditated murder conviction to life without possibility of release.  Mr. Martin was seventeen at the time of the offense. 

Mr. Martin asked the appellate court to reconsider its holding in State v. Chambers, 589 N.W.2d 466 (Minn. 1999) that a sentence of a juvenile to life without possibility of release did not violate the Eight Amendment’s proscription against cruel and unusual punishment.  Mr. Martin pointed to the 2005 Opinion of the United States Supreme Court, Roper v. Simmons, 542 U.S. 551 (2005), which held that the execution of juveniles under the age of eighteen is cruel and unusual punishment.  The Minnesota Supreme Court declines to extend Roper to life without possibility of release, in large part because of dicta in Roper that life without possibility of release was a more “palatable alternative to the juvenile death penalty.”  There are, in the United States, an astonishingly 2,484 juvenile offenders who are serving a sentence of life without possibility of release.  There is not a single juvenile, not one, serving such a sentence anywhere else in the world.

Whether life without benefit of release constitutes cruel and unusual punishment for a juvenile is presently before the U.S. Supreme Court on a cert petition out of Kentucky:  Phon v. Kentucky.

Over his objection, the district court tried Mr. Martin jointly with one of his codefendants.  The appellate court conducted its own review of the joinder ruling – a rather soft one at that - and upheld it, finding no substantial prejudice. The appellate court noted, among other things, that both defendants were charged with the same crimes (although not an intricate or complicated crime) and the evidence against them was virtually identical. 

Next up, a Batson challenge.  The prosecutor struck Black juror 43, who had expressed concerns about how African Americans are treated in the criminal justice system – he opined that the system was unfair to African Americans –; and who had opined that a cousin of his had been wrongly convicted of something.  All the same, though, juror 43 said he could be fair.  Perhaps, but not on this jury.  The trial court first denied the state’s peremptory challenge, but then reversed its ruling.  Justice Page, dissenting, points out that the court’s own Task Force on Racial Bias had reached the same conclusion, that minority citizens perceive that the court system is biased against them.  Justice Page, joined by Justice Paul Anderson, would have reversed the conviction and remanded for a new trial.

There were multiple claims of prosecutorial misconduct, all of which the appellate court dismissed.

There is a companion case, State v. Jackson, with much the same issues and outcome, but without the juvenile life without possibility of release issue.

 

Appellate Court Prohibits Impeachment of Defendant by Evidence of an Unspecified Prior Conviction.

State v. Utter, Jr., Minn.Ct.App., 9/15/2009. 

 

9/11/2011 Update:  The Minnesota Supreme Court overruled this opinion, State v. Hill.    Here’s the original post if you still want to read it.

Mr. Utter, Jr. spent just shy of two years chatting up L.S. about his affair with L.S.’s wife.  L.S. eventually got tired of it so he got himself a restraining order.  It didn’t help much as the calls kept coming.  A month of so after getting the restraining order, Mr. Utter, Jr., called L.S. yet again, which prompted the state to charge him with violating a harassment restraining order.

At trial, the state said that if Mr. Utter, Jr. testified it would seek to impeach him with a previous conviction of violating an order for protection.  The trial court more or less punted the request, ruling that the state could impeach Mr. Utter, Jr. by telling the jury that he had a felony conviction of a certain date.  Mr. Utter, Jr. testified anyway.

In making its ruling the trial court didn’t go through the Jones factors litany,  State v. Jones, 271 N.W.2d 534 (Minn. 1978), which are:

(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 crime to impeach), (4) the importance of defendant‟s prior testimony, and (5) the centrality of the credibility issue.

It turns out that whether evidence of an unspecified prior conviction is admissible for impeachment purposes hasn’t come up here.  Michigan won’t have it.  Kentucky and Wisconsin, among others, think it’s fine.  South Dakota, along with a few other states, leaves it to the trial court’s discretion.

Minnesota joins ranks with the minority view, which rejects a “mere fact” rule that allows the use of an unspecified prior conviction.  Otherwise:

to allow the admission of unspecified prior convictions would render meaningless our long line of cases emphasizing the importance of admitting only those convictions that assist the fact finder in measuring a witness‟s credibility and veracity

The error is also prejudicial, resulting in a remand for a new trial.  The appellate court noted that the trial court exacerbated its error by giving the jury a Spreigl instruction, instead of an impeachment instruction.

Biographical Information Obtained in Warrantless Raid by ICE Agents is Suppressed Under Fourth Amendment Exclusionary Rule

State v. Maldonado-Arreaga, Minn.Ct.App., 9/15/2009.  At 5:30 in the morning, immigration officers burst into Ms. Maldonado-Arreaga’s house.  They did not have permission.  They did not have a warrant.  There was no emergency.  They did have guns. Without benefit of a Miranda warning, Ms. Maldonado-Arreaga told the officers her name, address, date of birth, country of origin, employer, and that she had used an alias.  (Oh, did I mention that the immigration officers made Ms. Maldonado-Arreaga drive them around in her car to look for her adult son?  They did.)

The immigration officers recorded all this information on one of their forms, then gave a copy of the form to the Willmar police.  The Willmar police, in turn, used the form to discover that Ms. Maldonado-Arreaga had used the alias to obtain a driver’s license, to apply for her job, to obtain a social security card, and to record exemptions on her W-4 form.  The state charged her with various counts of aggravated forgery and identity theft. 

Ms. Maldonado-Arreaga moved to suppress the information contained on the immigration form, the information obtained from her employer, and the information obtained from the driver’s license office.  The trial court believed that the warrantless raid and detention, and the non-Mirandized interrogation – all of which produced the information on the immigration form – were unconstitutional, but that because most of the information was biographical there was no Fifth Amendment violation in admitting it.

The trial court relied upon three so called “routine booking question” opinions:  State v. Widdell, 258 N.W.2d 795, 797 (Minn. 1977); State v. Link, 289 N.W.2d 102 (Minn. 1979); and State v. Hale, 453 N.W.2d 704 (Minn. 1990).  Each of these cases involved booking questions asked of a suspect at a police station following a lawful detention, the only value of which was clerical.  Here, the questions to Ms. Maldonado-Arreaga were asked at a time when the immigration police had her chained – well, handcuffed – to her bed frame as her nursing baby lay sleeping at he side, and were intended to uncover evidence of crime: her entry status into the country.  The appellate court said that this implicates the Fourth Amendment and its exclusionary rule, not the Fifth Amendment.  Of all things, the appellate court relied upon an Eighth Circuit opinion, United States v. Guevara-Martinez, 262 F.3d 751 (8th Cir. 2001) to conclude that the exclusionary rule applies to the collection of biographical information from Ms. Maldonado-Arreaga.  The appellate court then concluded that the information on the immigration form, and the information that the Willmar police obtained on the basis of that form, must be suppressed as the fruits of the illegal raid and detention, the conduct of which the appellate court described as “flagrant and egregious”.  The appellate court concluded its Opinion with this blistering footnote:

Appellant does not claim that the detective was directly involved in the ICE raids. Yet, at oral argument, respondent conceded that members of the Willmar Police Department, including this detective, were in contact with ICE prior to the raid on appellant‟s residence, assisted ICE in coordinating unconstitutional raids on Willmar residents, and were present as “observers” during some of the raids. Clearly, the ICE raids did not occur in a vacuum, and the local police‟s participation—even if described as moderate, passive, or idle—is regrettable.

Requiring Those Entering Courtroom to Provide Identification Okay Under The Security Circumstances of the Case

State v. Cross, Minn.Ct.App., 9/8/2009.  Mr. Cross pled guilty to second degree murder.  There were bad feelings all around out in the gallery of the courtroom during the plea hearing, that spilled out into the hallway and streets.  The trial court decided that to discourage such behavior at the sentencing hearing those who entered the courtroom would have to identify themselves to deputies.  (Of course, if there were problems at the sentencing hearing the deputies would have a leg up in their investigation.)  Mr. Cross complained that this requirement violated his right to a public trial  even though no one who had wished to attend the sentencing hearing had been refused entry into the courtroom.  The trial court sentenced Mr. Cross in accordance with the plea agreement.

On appeal, Mr. Cross complained of this entrance drill.  The appellate court assumed without deciding that the Sixth Amendment right to a public trial applies at a sentencing hearing.  There was not, however, even a partial closure because the deputies did not exclude anyone who wanted to attend the sentencing hearing.  That one or more persons self excluded themselves in the face of the deputies and their identity inquires is also not a closure.  United States v. Shryock, 342 F.3d 948 (9th Cir. 2003). 

No Public Defender for “Extremely Dilatory” Defendant, Whose Inability to Retain Counsel Amounts to Forfeiture of Right to Counsel

State v. Jones, Minn.S.Ct., 9/10/2009.  A jury convicted Mr. Jones of offering a forged check, check forgery, and theft by swindle.  The facts are neither terribly interesting nor entertaining.  Rather, it’s the Sixth Amendment stuff and the 4-3 split that gets the headlines.

In February, May, and June, 2006, Mr. Jones appeared without counsel; at the first two appearances Mr. Jones applied for a public defender but the court said, no.  In June, Mr. Jones waived his right to counsel for the first appearance.  At the omnibus hearing two months later, he still did not have an attorney and none of the attorneys on the court’s reduced fee list would agree to represent him.  The court moved the case onto a trial docket.

At which time Mr. Jones objected to going forward without an attorney.  By this time he was working so the trial court figured that he would not qualify for a public defender; the trial court did give Mr. Jones on more month to retain counsel.  He still didn’t have an attorney.  He did have a $12.00 an hour job plus overtime; his live in girlfriend also had a job so between the two of them they made $4,500.00 a month.  Again, the trial court said he was not eligible for a public defender, saying that his income exceeded 125% of the federal poverty guidelines.  The trial court then extracted a begrudging verbal “waiver” of counsel from Mr. Jones and the trial commenced.  Here are the questions that the appellate court addressed.

First, was it okay for the trial court to consider the income of the live in girlfriend?  Such income “might be relevant to a defendant’s eligibility, especially when the defendant does not dispute including the income.”  Just how he was to know whether to dispute its inclusion isn’t mentioned. No real answer whether and when it’s okay to impute live in girlfriend’s income to defendant.

Second, can the trial court deny eligibility for a public defender solely because the applicant’s income exceeds 125% of the federal poverty guidelines?  Don’t know.  The appellate court concluded that this is not what the trial court did.

Third, did Mr. Jones make a valid waiver of his right to counsel?  Yes, but it’s the details that count.  Mr. Jones did not expressly waive his right to counsel; there is no written waiver and the colloquy was not adequate because it did not include inquiry about the nature of the charges, the advantages and disadvantages of self representation, and it did not even acknowledge Mr. Jones’s objections to proceeding without counsel.  That’s not the end of it, however.

There’s this waiver by conduct.  A defendant who engages in dilatory tactics after he’s been warned that he will lose his right to counsel if he persists loses his right to counsel.  The thing is, though, the same inquiry that is required for an express waiver is also required for a waiver by conduct, and that didn’t happen.

Does he get a lawyer?  No, because one can relinquish one’s right to counsel by forfeiture.  This is reserved for the defendant who engages in “extremely dilatory conduct.”  The great thing about forfeiture of the right to counsel is that none of that Faretta inquiry has to take place.

Now, one way to forfeit your right to counsel is to attack counsel in open court.  State v. Lehman,  749 N.W.2d 76 (Minn.Ct.App. 2008).  Mr. Jones didn’t have an attorney to attack but his failure in that regard amounts to a forfeiture of his right to counsel.  Simply put, the court gave him plenty of time to retain an attorney so that when he did not it appeared as if he were dragging his feet, and deliberately so at that; and each time he appeared in court (and was again denied a public defender) he was way too optimistic about the likelihood of getting an attorney to take his case.  He appeared eight times over the course of a year without counsel, almost always saying that he was planning to retain counsel.  He also knew of the disadvantages of self representation, saying to the trial court that he feared he would not get a fair trial without an attorney. 

Justice Page dissented, arguing that the trial court had not made an adequate record to explain the denials for a public defender.  Justices Meyer and Paul Anderson also dissented, but on the waiver question.  Justice Meyer did not think it was correct for the majority to equate attacking your attorney in open court with the inability to retain one; thus Mr. Jones’s conduct was not “extremely dilatory.” 

The Sixth Amendment has taken quite the beating in the Minnesota Courts this month, here, here, here, and here; and it’s only half over.  At least that great friend of the defendant, Justice Scalia, is still around.

Court Assumes Without Deciding That Police Have a Duty Similar to Rule 4.2 of Rules of Professional Responsibility; Any Violation, However, Was not Egregious under Clark Standard.

State v. Buckingham, Minn.S.Ct., 9/10/2009.  A jury convicted Mr. Buckingham of first degree premeditated murder and the trial court sentenced him to life without parole.  Police arrested Mr. Buckingham two days after the murder.  A couple of weeks later Mr. Buckingham called the police from jail, wanting to talk.  The officer recorded the Miranda warning and Mr. Buckingham’s request that the officer turn off the recorder.  The officer complied and Mr. Buckingham gave an incriminating statement.

On appeal, Mr. Buckingham complained of the failure to have recorded the entire interrogation, citing State v. Scales, 518 N.W.2d 587 (Minn. 1994).  During trial, however, Mr. Buckingham did not raise any factual disputes about the substance of the unrecorded statement.  Under State v. Inman, 692 N.W.2d 76 (Minn. 2005), this failure to have raised any factual disputes about the content of the statement makes any Scales violation unsubstantial.

Mr. Buckingham got in touch with the police at a time when he had counsel.  The officer tried unsuccessfully to contact Mr. Buckingham’s attorney, but the attorney’s voice mail box was always full; the officer did not notify the prosecutor of Mr. Buckingham’s contacts.  This omission arguably takes the interview out from under State v. Clark, 738 N.W.2d 316 (Minn. 2007), so Mr. Buckingham asked the appellate court to extend Clark to the police.  The appellate court rejected a request to impose an affirmative duty on the police:

to either (1) obtain explicit consent of counsel before interrogating the defendant; (2) notify the prosecutor that the defendant wants to talk, but is requesting his counsel be present; or (3) refrain from communicating with the defendant until the prosecutor and counsel have discussed the request and directed the most appropriate [course] of action.

The appellate court assumes without deciding that law enforcement owes a duty similar to prosecutors, but concludes that the behavior here was not “egregious” under Clark.  (Where a prosecutor violates Rule 4.2, the court takes a case by case approach to determine whether the conduct is so egregious as to compromise the fair administration of justice.)  For one thing, Clark had not been decided so even if the officer had called the prosecutor, that prosecutor may have believed in good faith that attempts to contact counsel satisfied Rule 4.2.

You Can Represent Yourself, But Not Back in Chambers

Holt v. State, Minn.S.Ct., 9/3/2009.  A jury convicted Mr. Holt of first degree premeditated murder, among other things, and the judge sentenced him to life in prison.  Nine years later, Mr. Holt filed a post conviction petition in which he raised seven issues.  Many were evidentiary and instructional rulings; the two interesting ones relate to the right of self representation.

In the middle of trial, Mr. Holt asked to represent himself, which the trial court granted.  A day or two later, one of the juror’s reported that twice someone had tried to break into his house.   The trial court held an in-chambers hearing to question the juror; Mr. Holt was not permitted to attend this hearing even though he was by then representing himself.  The juror stated that he thought that he could continue to be a fair juror so the trial court left him on the jury.  On appeal, Mr. Holt asked the appellate court to adopt an “implied bias” standard but the appellate court declined to do so.

During the colloquy on self representation, the trial court warned Mr. Holt that he would not be permitted to attend bench or in-chambers conferences, but that the substance of such conferences would be put on the record and stand by counsel could attend them.  With that in mind, the appellate court rejected Mr. Holt’s complaint that his Faretta rights had been violated by his exclusion from the in-chambers hearing with the juror.  That exclusion did not, the appellate court, concluded, hamper Mr. Holt’s control over his own case. 

Justices Page and Paul Anderson dissented, pointing out that there was no reason why the hearing with the juror could not have been held in the courtroom.  The trial court improperly forced Mr. Holt to chose between forgoing completely his constitutional right of self representation and accepting seemingly arbitrary limitations on his right to be present at all stages of his trial.

What’s That You Say? A Lawyer? I Can’t Hear You!

State v. Chavarria-Cruz, Minn.Ct.App., 9/8/2009.  A grand jury indicted Mr. Chavarria-Cruz on charges of first degree premeditated murder, and first degree murder for the benefit of a gang.  Detective Hanson, the lead investigator, interrogated Mr. Chavarria-Cruz; he recorded the interrogation as he is required to do, using his police department’s recording equipment.  The Detective noticed that Mr. Chavarria-Cruz was difficult to understand because he was very soft spoken, often looked down when speaking, and had a pronounced accent.  The Detective apparently did nothing to remediate any of these deficiencies.

Thirty minutes into the interrogation, Mr. Chavarria-Cruz tells Detective Hanson “I think I need a lawyer.”  The recording equipment “heard” this statement; the transcriber had no apparent difficulty hearing it when typing the transcript.  Problem was, according to the detective, is that he didn’t hear it.  The trial court accepted this assertion, made a finding of fact that the detective didn’t hear the lawyer statement and then denied the motion to suppress everything that Mr. Chavarria-Cruz said after the lawyer statement.

At least for now, Edwards v. Arizona, 451 U.S. 477 (1981) establishes a bright line rule:  once an accused says that he wants to deal with the police only through counsel, police interrogation must cease until counsel has been made available, unless the accused himself initiates further communication.  (But see, State v. Clark, 738 N.W.2d 316 (Minn. 2007).  The appellate court took a statement out of context from Davis v. United States, 512 U.S. 452 (1994) that whether an accused actually invoked his right to counsel is an objective inquiry.  That’s true enough when the question -  as it was in Davis - is whether the request for counsel was equivocal or not, but it doesn’t provide a legal rationale for the trial court’s finding that the detective didn’t hear the statement.  Objectively, when parsing an equivocal request for counsel, the inquiry is whether that request may reasonably be construed as a request for counsel.  Here, there’s nothing equivocal about Mr. Chavarria-Cruz’s statement:  “I think I need a lawyer.”  The only question was whether to believe the detective.  That’s a different analysis all together.

"Don't ever tell anybody anything. If you do, you start missing everybody."
- J.D. Salinger, The Catcher in the Rye

And the purpose of Scales, was what?

A Witness Who Refuses to Testify Except to Volunteer That Defendant is Innocent Allows Introduction of Prior Inconsistent Statements; a Coroner Who Did Not Perform Autopsy May Testify to its Results, at Least For Now.

State v. Bobo, Minn.S.Ct., 7/30/2009.  James Roberts and Reginald Nichols were waiting for a friend to finish up work at Stand Up Frank’s, a bar in Minneapolis.  As they waited, a truck or SUV drove past them, made a U-turn and returned.  As the SUV drove past the two men a second time someone in the SUV opened fire, wounding Mr. Nichols and killing Mr. Roberts.  The state eventually charged Mr. Bobo with the shooting and homicide, in no small part on the basis of information from a less than reliable snitch, one Sam James.  Mr. James gave statements both to the police and to a grand jury that implicated Mr. Bobo in the shooting and homicide.

Come trial time, however, and Mr. James would not testify other than to offer, unsolicited, the opinion that Mr. Bobo was innocent; the trial court held him in contempt.  The state alleged, unsuccessfully, that Mr. Bobo had intimidated Mr. James out of testifying by, among other things, packing the court room with fellow gang members.  That being the case, the state wanted to introduce Mr. James’ prior statements to the police and to the grand jury.  The trial court denied this request, so the state then asked to close the court room during James’ testimony.  The trial court agreed but Mr. James persisted in not testifying.  Exasperated, the trial court then permitted the state to introduce some of James’ prior statements, although they didn’t really seem to hurt Mr. Bobo.  Nonetheless, Mr. Bobo’s counsel then cross examined Mr. James, who launched into this tirade that everything he claimed he knew about the charges had come from the police and that he had lied to the grand jury.  Bingo, the trial court then let the state introduce wholesale James’ prior statements.

In this combined direct appeal and post conviction appeal, Mr. Bobo argued, among other things, that his trial counsel had been ineffective by deciding to cross examine Mr. James.  The appellate court avoids this claim by saying that the trial court was wrong to have excluded James’ prior testimony after he first hit the stand and proclaimed that Mr. Bobo was innocent.  The trial court should have admitted the prior statements as prior inconsistent statements. 

Mr. Bobo also complained about the closing of the courtroom.  The trial court had evidence before it that immediately before James first testified several gang members entered the courtroom; those same gang members left the courtroom immediately after his testimony.  The trial court also had evidence that James claimed it was the presence of these gang members that made him afraid to testify.  This satisfied the appellate court that the trial court had a valid basis to close the courtroom; the appellate court also rejected the claim that the court should have excluded only the alleged intimidators.

Finally, a medical examiner who did not perform the actual autopsy testified about the autopsy results; she did so without defense objection and so the appellate court applied a plain error standard.  The appellate court politely noted that a court of appeals opinion, State v. Johnson, 756 N.W.2d 883 (Minn.Ct.App. 2008), rev. denied, (Minn. 12/23/2008), had held that admitting an autopsy report by a medical examiner who was not testifying was plain error.  This opinion, however, came after Mr. Bobo’s trial so any error in his trial could not be “plain.”  The appellate court did not mention last term’s U.S. Supreme Court Opinion, Melendez-Diaz v. Massachusetts, which held that to avoid a Crawford violation the state must produce the chemist who tested the drugs in a drug prosecution and could not just introduce the lab report.  But see, Briscoe v. Virginia, cert. granted, 6/29/2009, which asks the question whether allowing the defense to call the chemist after the state introduces the lab report satisfies Crawford.

Felony Stalking Statute is Not Unconstitutional

State v. Stockwell, Minn.Ct.App., 8/11/2009.  On September 12, 2006, Ms. Stockwell rode M.H.’s bumper for several blocks on a four lane road in Rochester.  The two women did not know each other.  When M.H. pulled into her workplace parking lot, Ms. Stockwell followed her, then shouted at her about Islamic terrorism, about M.H.’s Islamic beliefs and about feeling like killing her.  M.S. is a Muslim woman who was wearing a headscarf at the time.  A jury convicted Ms. Stockwell of felony stalking.  On appeal, Ms. Stockwell argued that the felony stalking statute is overbroad in violation of the First Amendment, both on its face and as applied; and that the statute is unconstitutionally vague.  The appellate court rejects these arguments.

One who intentionally harasses another by stalking that  person, with knowledge or reason to know that this would cause the victim to feel frightened (among other feelings) and causes this reaction is guilty of felony stalking if the actions are undertaken because of a person’s religion.  The appellate court rejects Ms. Stockwell’s facial challenge for these reasons:

Because the statutory provision is specific as to the forms of conduct proscribed, because it requires that the actor knows her conduct will cause fear and causes that reaction, and because it is subject to a limiting construction, we conclude that the degree of overbreadth is not sufficiently substantial to require a holding that the statute is unconstitutional on its face.

The appellate court also rejects an “as applied” challenge, concluding that her bumper to bumper driving conduct did not convey a particularized message that might be deserving of First Amendment protection.  Lastly, Ms. Stockwell suggested, unsuccessfully, that the statute made any tailgating a stalking crime and thus the statute was void for vagueness.  The appellate court again points to the other requirements of the statute in rejecting this argument.

One Count of Interference With Privacy Okay For Each Person Captured on Hidden Camera

State v. Sopko, Minn.Ct.App., 8/11/2009.  Mr. Sopko installed a video camera in an air vent in a women’s college locker room.  He tested the camera by recording himself, then pointed it at the shower area.  Someone found the camera fairly quickly – the same day – but not before the camera captured Mr. Sopko and seven women in the locker room.  The state charged Mr. Sopko with seven counts of interference with privacy, in violation of Minn.Stat. 609.746, subd. 1(d):

A person is guilty of a gross misdemeanor who:
(1) surreptitiously installs or uses any device for observing, photographing, recording, amplifying, or broadcasting sounds or events through the window or other aperture of a sleeping room in a hotel, as defined in section 327.70, subdivision 3, a tanning booth, or other place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts, as defined in section 609.341, subdivision 5, or the clothing covering the immediate area of the intimate parts; and
(2) does so with intent to intrude upon or interfere with the privacy of the occupant.

Mr. Sopko thought that the statute’s focus was the installation of the camera for the statutory naughty purpose; because he installed only one camera he could be charged with just one count.  Not so.  The appellate court relied upon an Alaskan Opinion that had reached a similar result, Knutsen v. State, 101 P.3d 1065 (Alaska Ct.App. 2004).  The appellate court also said that the objective of the statue was not just to prevent the installation of the camera but to protect an individual’s privacy.

Peek a boo.

Even An Assumed Discovery Violation Requires Actual Prejudice to Obtain a New Trial

State v. Jackson, Minn.S.Ct., 8/6/2009.  Someone shot Markey, a Bloods gang member.  Mr. Jackson and his crew believed that one of three gangs – the Bogus Boys, the 20s or the 10s – had done it, so they went looking for them.  In the ensuing melee Mr. Jackson shot and wounded T.K., and he shot and killed Gennaro Knox.  Neither shooting victim was affiliated with any gang.

This was Mr. Jackson’s second trial; the first ended in a mistrial when the jury could not reach a verdict.  In the run up to the first trial, the state had filed a certificate to withhold Rule 9 disclosures for ten witnesses.  The state did provide information that these witnesses had given to police but it withheld identifying information about who they were and where they could be found.  The criminal rules allow this to occur:

The information relative to the witnesses and persons described in Rules 9.01, subd. 1(1), (2) shall not be subject to disclosure if the prosecuting attorney files a written certificate with the trial court that to do so may endanger the integrity of a continuing investigation or subject such witnesses or persons or others to physical harm or coercion, provided, however, that non-disclosure under this rule shall not extend beyond the time the witnesses or persons are sworn to testify at trial.

Seven of those witnesses testified at the first trial.  Mr. Jackson argued in the run up to the second trial that these seven witnesses had been “sworn to testify at trial” and so he was entitled to all un-redacted copies of all Rule 9 materials.  When Mr. Jackson made this pitch to the trial court to get the un-redacted reports in between the two trials, the trial court denied the request for production of the materials.

The appellate court assumed that the state had violated a discovery order; only Justice Page said that the rule entitled Mr. Jackson to the materials in between the two trials.  The appellate court, however, said that Mr. Jackson had to show prejudice from the alleged violation, which he did not do. 

Mr. Jackson also complained of four items of evidence that the trial court allowed the state to introduce to prove that he committed these crimes for the benefit of a gang.  One was a printed web page that depicted Mr. Jackson and his girlfriend, both wearing red, the color that other witnesses said was affiliated with member of Mr. Jackson’s gang.  The appellate court questioned whether the state had presented a proper foundation for the introduction of the web page, suggesting that someone from the website who had knowledge of the website content needed to testify to authenticate it.  Audi AG v. Shokan Coachworks, Inc., 592 F. Supp. 2d 246, 277-78 (N.D.N.Y. 2008).  Even so, Mr. Jackson could not show that the introduction of the web page substantially influenced the jury’s decision. 

If You Enter the State, Even In Custody, You Are Subject to the Predatory Registration Statute.

In the Matter of the Risk Level Determination of G.G., Minn.Ct.App., 8/25/2009.  The Wabasha County Attorney charged G.G. with various crimes; at the time G.G. was serving a prison sentence over in Wisconsin.  Because it was a sex crime G.G. was required to register in Wisconsin as a predatory offender.  After a while, Wisconsin sent G.G. over to Minnesota to take care of the Wabasha County charges; G.G. spent about three weeks in the local jail and then returned to Wisconsin.

The Department of Corrections determined that G.G. was also required to register as a predatory offender in Minnesota.  G.G. took issue with this, saying that he had not entered Minnesota and remained for 14 days or longer.  Minn.Stat. 243.166, subd. 1b(b)(2).  G.G. said that entry only counts when it’s volitional. The appellate court concedes that the statutory text is ambiguous so it gets to look at the purpose of the registration statute.  That clinches it; G.G. has to register even when he’s hauled over in handcuffs.

No Entitlement to Voluntary Intoxication Instruction on Reckless Terroristic Threats Charge.

State v. Bjergum, Minn.Ct.App., 8/25/2009.  Mr. Bjergum came to work drunk one day; his employer sent him home, then fired him.  About a month later, a former coworker and her husband separately ran into Mr. Bjergum drinking at a local bar; on each occasion Mr. Bjergum said that if he didn’t soon get his unemployment he would go down to his former workplace and “go postal.”  The state charged him with intentional terroristic threats.  When Mr. Bjergum gave notice of an intoxication defense the state added a second terroristic threats count, this one alleging reckless conduct.  At trial, the court refused to give an intoxication instruction on the reckless terroristic threats count.  As luck would have it, the jury acquitted on the intentional terroristic threats but convicted on the reckless one.  That was the issue on appeal.

Back in 1976, the Minnesota Supreme Court said that voluntary intoxication is a defense if a particular intent or other state of mind is a necessary element of the crime charged.  City of Minneapolis v. Altimus, 306 Minn. 462, 238 N.W.2d 855 (1976).  So, the legal question is whether making terroristic threats with reckless disregard for the consequences requires specific intent.  Mr. Bjergum first argued that there’s no such thing as an unintentional threat and so terroristic threats requires intentional conduct.  The appellate court says that this isn’t so.  A declared threat, say, “I’m going to kill you.” may be just that or it may be a joke.  It’s a crime regardless when the statement would reasonably cause fear that the speaker will act accordingly. 

Next, Mr. Bjergum argued that the recklessness requirement is that “other” state of mind that triggers a voluntary intoxication instruction.  Again, the appellate court rejects this.  Although recklessness requires deliberate action in disregard of a known, substantial risk, it is not the same as specific intent.  The reckless declaration, however intended, may violate the statute.

 

In a Burglary Prosecution the State Cannot Rely Upon the Domestic Abuse Prior Bad Acts Statute to Introduce Evidence of those Prior Bad Acts.

State v. McCurry,Sr., Minn.Ct.App., 8/18/2009.  As G.M. was getting ready for work, an intruder, whom G.M. afterwards identified as her ex-husband, Mr. McCurry, broke into her home.  The intruder stole G.M.’s wallet and left.  G.M. used a ruse by which to meet with Mr. McCurry later that day, at which time the police arrested him.  The state charged Mr. McCurry with burglary and theft.

The McCurry’s had had a contentious relationship and things didn’t let up once the trial started.  The fireworks started right away when the prosecutor asked G.M. what happened after the two of them had met and she became pregnant.  She volunteered that soon after that Mr. McCurry went to prison for attempted criminal sexual assault.  It continued when the state wanted to introduce evidence of all the prior bad acts between them, which the state said was admissible under 634.20.  This statute has noting to do with burglary:

634.20 EVIDENCE OF CONDUCT.

Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

G.M. was prepared to testify to various instances of physical abuse and sexual infidelities during the marriage.  She was also ready to testify about three incidents that occurred shortly before the burglary; in one Mr. McCurry came to her house, argued with her, pushed her and smashed her phone, causing her to flee.  In another, he came to her house through the kitchen window and “stayed with her overnight.”  In the third, he phoned her and made a veiled threat, after which G.M. discovered damage to her car.  The trial court ruled that G.M. could testify to these three incidents and could testify generally that she and Mr. McCurry had had problems.  This ruling was the main issue on appeal.

The appellate court concludes that 634.20 applies only to trials that involve charges of domestic abuse.  That being so, the appellate court looked for other justifications for the admissibility of G.M.’s testimony.  The court concludes that her general evidence about tensions and disagreements was admissible as relationship evidence without regard to the statute or to a Spreigl analysis.  On the other hand, the three specific incidents were admissible only under a Spreigl, analysis.  Since the state didn’t believe it needed to comply with Spreigl, it did not give Mr. McCurry the proper notice; testimony about the three specific incidents was thus not admissible.  Unfortunately for Mr. McCurry, the error was harmless.

Mr. McCurry also complained that the prosecutor commented on his failure to call alibi witnesses.  The appellate court says that such comments are prosecutorial misconduct, but this misconduct was harmless.

The Dangerous Weapon Need Not Have Caused The Substantial Bodily Harm to Support a Conviction of Second Degree Assault.

State v. Harlin, Minn.Ct.App., 8/25/2009.  Mr. Harlin suspected that his girlfriend was cheating on him so he set about to find out.  Mr. Harlin believed that an aggressive approach was required, but instead of water boarding he used a mallet and a hammer; over the next forty five minutes he hit her with one or the other each time he didn’t believe her answers to his questions.  (Still dissatisfied, he tried to hang her by wrapping an electrical cord around her neck.)  Among other things, the state charged Mr. Harlin with second degree assault with a dangerous weapon, substantial bodily harm.

Here’s what the statute says:

609.222 ASSAULT IN THE SECOND DEGREE.
Subd. 2. Dangerous weapon; substantial bodily harm. Whoever assaults another with a dangerous weapon and inflicts substantial bodily harm may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.

Mr. Harlin conceded that he used a “dangerous weapon” and that his girlfriend suffered bruises on her back and a cut to her scalp.  He argued that the state had to prove that the dangerous weapon caused the substantial bodily harm.  The appellate court isn’t buying the argument.  The court says that all that is necessary is an assault that results in substantial bodily harm and that the assault involves the use of a dangerous weapon. 

All Your Car’s Brake Lights Must Work; If Not, There’s Justification To Stop You; An Officer Can Also Stop You For Littering.

State v. Beall, Minn.Ct.App., 8/25/2009.  A Coon Rapids officer saw a car with its center brake light out; worse than that, the officer saw a passenger throw a cigarette butt out the window.  Seeing enough, she pulled the car over.  Noticing an alcohol smell, the officer administered a field sobriety test to Mr. Beall, on which he registered .212.  The officer arrested Mr. Beall; at the station, his Intoxilyzer reading was .210.

The district court concluded that because Mr. Beall’s car had two working brake lights as required by Minn.Stat. 169.57, subd. 1(a) the officer had no basis on which to have stopped the car.  Further, littering was not “really an issue.”  The state appealed the suppression of its evidence.

The problem was, the trial court overlooked a different subsection of the statute, 169.57, subd. 3(a), which says that no matter how many you have all of your “stop lamps” have to be working:

[W]hen a vehicle is equipped with stop lamps or signal lamps, such lamps shall at all times be maintained in good working condition.

The appellate court rejects Mr. Beall’s argument that his just refers to the two “stop lamps” that the other subsection mentions.  So, two out of three isn’t good enough; the officer’s observation of the burnt out center brake light gave her justification to stop the vehicle.

To add insult to injury, although littering is a petty misdemeanor, the officer’s observation of it also justified the stop.

Exigent Circumstances, Genital Searches Incident to Arrest – Well You Have to Read It.

State v. Lussier, Minn.Ct.App., 8/18/2009.  At around two in the morning, officers met up with a woman who was wrapped in a blanket, shaking, crying uncontrollably as she reported that she had just been raped inside the next door garage.  The officers checked out the garage, during which they saw various items of female clothing, condom wrappers, and a make shift bed, among other things.  The officers did not see anyone inside the garage.  Roughly an hour later, the officers decided that the rape suspect was inside the house next to the garage, perhaps destroying evidence, such as body fluids.  The officers knocked on the door but got no response so they forced themselves inside.  They found Mr. Lussier inside.  The officers swabbed Mr. Lussier’s bleeding hands, then took him to the hospital for a sexual assault exam.  At the hospital, someone combed his pubic hair and swabbed his cheek, swabbed his hands (again) and swabbed his penis.  All this without a warrant.

The trial court suppressed the evidence obtained during the search of the residence, and the evidence obtained during the sexual assault exam.  The trial court said that there were no exigent circumstances to support the residence search and the sexual assault exam was a fruit of the unconstitutional residence search.  The state appealed this pretrial ruling and gets a split decision.

Although the U.S. Supreme Court has never really settled the question, Minnesota has utilized one of two tests to determine the existence of exigent circumstances:  either a single factor or by the totality of the circumstances.  State v. Gray, 456 N.W.2d 251 (Minn. 1990).  Once such single factor is the imminent destruction or removal of evidence.  Under both tests, the standard is an objective one:  whether the officer reasonably believed that Mr. Lussier was capable of destroying evidence.  That officers had been told by a neighbor that Mr. Lussier was most likely extremely drunk and asleep is interesting but not determinative.  The possible destruction of evidence thus justified the entry into the residence without a warrant.

That said, the hospital exam cannot be excluded as the poisonous fruit.  On the other hand, the examination at the hospital of Mr. Lussier’s genitals was not a valid search incident to a lawful arrest.  First, it may be okay to look at Mr. Lussier’s penis, State v. Riley, 303 Minn. 251, 226 N.W.2d 907 (1975), but that’s a far as it goes without a warrant (or, I suppose, consent).  Moreover, Mr. Lussier was handcuffed and under constant police observation during the exam, which brings this exam within the orbit of Arizona v. Gant, 129 S.Ct. 1710 (2009) (“If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.”).

Permissive Consecutive Sentencing on a DUI Is At A Zero Criminal History Score

State v. Johnson, Minn.Ct.App., 8/18/2009.  An officer down in Scott County stopped Mr. Johnson, apparently on suspicion of driving while impaired.  He was.  The state charged him with gross misdemeanor driving after cancellation and with felony first degree driving while impaired.  He pled guilty to both charges, with an agreement for the court to sentence him first on the gross misdemeanor.

His criminal history score was eight.   The district court gave Mr. Johnson a year in jail on the gross misdemeanor.  The trial court used the history score of 8  and imposed a stayed sentence of 102 months, consecutive to the gross misdemeanor, which was a departure from the guideline sentence of 75 months executed.  Later, the district court reduced the sentence on the felony to 75 months, again using a history score of eight.

Mr. Johnson appealed, saying that the trial court should have sentenced him at the zero history score level.  The appellate gets to that after first pointing out that permissive consecutive sentencing for the felony is authorized by statute, Minn.Stat. 169A.28, subd. 3:

The court may order that the sentence imposed for a violation of section 169A.20 (driving while impaired) run consecutively to a previously imposed misdemeanor, gross misdemeanor, or felony sentence for a violation other than section 169A.20.

When it came time to sentence of the felony, he had the requisite “[just] previously imposed … gross misdemeanor … sentence for a violation other than section 169A.20.

The real fight is over the history score, zero (for permissive consecutive sentencing) or eight.  The state argued that because Guidelines II.F.2. says nothing about permissive consecutive sentencing for a felony driving while impaired then the actual criminal history score wins.  The state’s argument is based on this language from II.F.:

Except when consecutive sentences are presumptive, consecutive sentences are permissive (may be given without departure) only in the following cases . . . .

And then it lists seven instances where permissive consecutive sentencing is okay, none of which is remotely close to a felony driving while impaired sentence.  The appellate court says, no, anyway, that the correct history score is zero, mostly because it doesn’t like the result.  While the appellate court correctly points out that the statute, 169A.28, subd. 3 is more specific than the guidelines, the statute is totally silent on what criminal history score to utilize so the court’s footnoted reliance on this argument is somewhat thin.  Nonetheless, Mr. Johnson wins and gets to go back for a new sentencing hearing with a zero history score.

Whether the Inclusion in a Complaint of only a Victim’s Initials Suffices to Enable a Determination of Probable Cause is a Case By Case Determination

State v. Dunson, Minn.Ct.App., 8/18/2009.  The criminal complaint in this (and a companion) case identified the victims only by initials.  The names were disclosed in discovery materials provided under the criminal rules.  The trial court, on its own, ruled that the use of initials in the complaints violated the rules of criminal procedure and due process requirements of the federal and state constitutions.  The trial court said that the name of the victim was an essential element of a complaint, the absence of which precluded a finding of probable cause.  Accordingly, the complaints were dismissed.  The state appealed.

First, it’s an appealable order. 

Second, it is generally unnecessary for purposes of determining probable cause to include the actual names of the victim of the alleged offense.  Rule 2.01 requires only that the trial court determine that an offense has been committed and that the charged defendant committed it.  The appellate court could find no requirement in this rule or any other rule that the actual name of the victim be stated in the complaint.  As a due process/notice requirement, whether the charging document adequately identifies the alleged victim through information other than a name is a fact specific question; a blanket pronouncement that the actual name must be provided in order to apprise a defendant of the nature and cause of the accusations against him goes too far.

A Hearing To Consider Conferring Use Immunity is not a “Critical Stage” at Which a Defendant Has a Right to be Present.

State v. Booker, Minn.Ct.App., 7/28/2009.  Two men, one of whom was alleged to be Mr. Booker, robbed a taxicab driver at gunpoint.  The investigating officer got the cell phone number used to order the cab and traced it back to an apartment located at the same address that the taxicab driver had picked up the two men.  R.G. lived at this apartment and he did not fit the description of the two assailants.  He did lead the officer to two men who had come to his apartment at the time of the robbery:  J.R., and Duckworth.  R.G. picked photos of both of these men from a photo array.

The investigating officer then built two photo arrays to show to the taxicab driver; one had J.R. as the suspect and the other had Duckworth; neither array contained a photo of Mr. Booker.  The officer showed the arrays to the taxicab driver, who picked J.R. and Duckworth from them.  Finally, the officer showed the taxicab driver one last photo array, intended to rule out J.R. as a suspect; it contained a photo of Mr. Booker.  The taxicab driver then said that he had been wrong about J.R. but that he was 100 percent certain that Mr. Booker was the person who had pointed the gun at him.

But all of this has little to do with the meat of the Opinion.  Rather, the central issue was whether Mr. Booker had a right to be present when the trial court pondered whether Mr. Duckworth could assert a Fifth Amendment privilege and refuse to testify.

Duckworth gave a confession of sorts; it at least put Booker in the cab – the right cab – at the time of the robbery.  Duckworth, however, got cold feet and refused to testify at Booker’s trial, whereupon the state offered him use immunity.  Because Duckworth had already been tried and convicted for his roll in the robbery, the trial court held a hearing to determine whether Duckworth still had a Fifth Amendment privilege to assert; the trial court held this hearing in secret with neither Mr. Booker nor his attorney present.  When Booker’s attorney complained, the trial court held a second hearing after which it ordered Duckworth to testify.

On appeal, Mr. Booker argued that he had a right to be present at the first hearing where the court considered whether there was a Fifth Amendment privilege to be asserted.  The appellate court rejects this argument for three reasons:  the rules of criminal procedure don’t mention hearings under the use immunity statute, 609.09; the statute only requires notice to the person whose testimony is to be compelled, omitting any reference to the defendant; case law suggests that use immunity is often granted before the start of the trial, without the presence of either the defendant or counsel.  Although the appellate court said there were three reasons, it actually mentions a fourth one:  a defendant has no standing to challenge the court’s ruling to grant immunity.

Mr. Booker made various pro se challenges to the identification procedures, all of which the appellate court rejected.

Admission of Prior Bad Acts, Offered to Prove Motive, Was Proper.

State v. Burrell, Minn.S.Ct., 8/20/2009.  Mr. Burrell has been twice convicted for the shooting death of Tyesha Edwards, age eleven;  Mr. Burrell was shooting at someone else, Timothy Oliver.  One of the bullets went through Mr. Oliver’s pants before it struck Edwards.  Mr. Oliver and Mr. Burrell were members of rival gangs at the time; (Mr. Oliver died in between the two trials.)  The Minnesota Supreme Court reversed Mr. Burrell’s first conviction, a judge convicted him again, and he again appealed.

The trial court permitted the state to elicit evidence of four “prior bad acts.”  First, that some years back Mr. Burrell had shot at one of the state’s witnesses, Dameon Leake; Mr. Leake testified that Mr. Burrell told him that he’d been trying to “smoke Little Timmy” when Edwards got killed.  The state was also allowed to elicit evidence from another of its witnesses, Terry Arrington, that Mr. Burrell had shot at Mr. Arrington and Mr. Oliver some time before the Edwards shooting, all the while saying “What up, Blood.” as he fired.  Mr. Arrington testified that Mr. Burrell had told him that the bullet that hit Edwards had first gone through Oliver.  Next, Deleon Walker testified that Mr. Burrell had shot at him some years back; as with the Edwards shooting, Mr. Burrell missed Mr. Walker but struck another person instead.  Finally, Mr. Burrell’s ex-girlfriend testified that Mr. Burrell had shot at the occupants of a passing car as those occupants shot back.

On appeal Mr. Burrell challenged the introduction of all this prior bad acts evidence.  The trial court had allowed in this evidence to prove motive.  Mr. Burrell contended that the prior act, when offered to prove motive, must be of a “but for” character:  if not for the bad acts, the defendant would have had no reason to commit the charged offense.  The appellate court rejected this contention.  The question is whether the evidence is material and relevant; if so, then the next question is whether the probative value weighed against the potential for unfair prejudice.  The appellate court answered both questions, yes.  It’s important to emphasize that the prejudice question may have received a different answer had this been a jury trial.

Mr. Burrell also challenged the introduction of certain gang testimony from a “gang expert.”  The appellate court assumed without deciding that some of the testimony was erroneously admitted but said it was harmless.  The issue at trial had been whether Mr. Burrell was the shooter; because none of the gang testimony alleged that Mr. Burrell was the shooter its admission was harmless.

Finally, the state conceded that the trial court could not impose a sentence that was longer than the original sentence.  See Hankerson v.State, 723 N.W.2d 232 (Minn.2006).

“Cornerhouse” Interview of Child Sexual Abuse Victim is “Testimonial” under Crawford.

Bobadilla v. Carlson, 2009 WL 2392182, C.A.8 (Minn. 2009).  See State v. Bobadilla, 709 N.W.2d 243 (Minn. 2006).   The Minnesota Supreme Court had ruled that a social worker’s interview of a child sexual abuse victim was not “testimonial” under Crawford v. Washington, 541 U.S. 36 (2004).  The trial court could, therefore, admit the interview when the child was unavailable because of young age (incompetent).  The Eighth Circuit effectively reversed the Minnesota Supreme Court.  Here’s the salient paragraph from the Opinion of the Eighth Circuit, granting Mr. Bobadilla’s federal habeas petition and ordering a new trial:

Crawford held that statements taken by police officers in the course of interrogations are testimonial under even the narrowest standard, and it was unreasonable for the Minnesota Supreme Court not to conclude the interview of T.B. was, in all relevant aspects, a form of police interrogation. First, the interview was initiated by a police officer. Second, the interview was conducted for the purpose of the criminal investigation. Although Molden contacted T.B.’s mother, the evidence demonstrates it was Detective Akerson who requested Molden to do so. Furthermore, Molden stated Detective Akerson asked her to “assist him” in questioning T.B. and
that she was not involved in the criminal investigation until Detective Akerson “asked [her] to assist him.” Third, the interview was not conducted until five days after the
abuse was first alleged, which indicates the purpose of the interview was to confirm a past allegation of abuse rather than to assess immediate threats to T.B.’s health and welfare. Because of these circumstances, this interview was no different than any other police interrogation: it was initiated by a police officer a significant time after the incident occurred for the purpose of gathering evidence during a criminal investigation.

The Eighth Circuit also points to two more recent U.S. Supreme Court Opinions, which it says “strongly supports” its conclusion:  Davis v. Washington, 126 S. Ct. 2266 (2006) (holding that statements made during a 911 emergency call were not testimonial, while statements made to a police officer after the danger had passed were testimonial); and Melendez-Diaz v. Mass., 129 S. Ct. 2527 (2009) (holding that lab analyses introduced into trial are testimonial).

The Eighth Circuit also rejected the state’s reliance on Minn.Stat. 626.526, which authorizes social workers to interview alleged victims of abuse for the purpose of protecting their health and welfare.  At the same time, the statute requires that the interview be recorded and that the social worker coordinate the interview with the police in order to eliminate the need for multiple interviews. 

When Imposing a “Minimum Term of Imprisonment” For a Criminal Sexual Conduct Life Sentence, The Guidelines Apply in Establishing That “Minimum Term”.

State v. Hodges, Minn.S.Ct., 8/13/2009.  A grand jury indicted Mr. Hodges on one count of criminal sexual conduct in the first degree, and on one count of criminal sexual conduct in the third degree.  For both counts, the indictment included a statutory reference to Minn.Stat. 609.3455, a subdivision of which carries a life sentence (but with eligibility for supervised released after service of a “minimum term of imprisonment”).  The statute requires that the trial court state at sentencing what the “minimum term of imprisonment” is; the court is to base that minimum term on either the sentencing guidelines or any applicable mandatory minimum sentence.

Mr. Hodges pleaded guilty to criminal sexual conduct in the third degree.  He waived his right to a Blakely sentencing jury; he and the state agreed that the “minimum term of imprisonment” would be 270 months.  The trial court imposed a life sentence, with the 270 month minimum term of imprisonment.  It justified the 270 month term by concluding that either the guidelines did not apply or that there were seven aggravating factors to support the sentence under the guidelines (which called for a presumptive sentence of 91 months).

The appellate court concluded that the guidelines do apply.  It rejects Mr. Hodges’ argument that the state had failed to give timely notice of its intent to seek an upward departure, pointing to the stipulation in the plea agreement for a minimum term of imprisonment that exceeded the presumptive guidelines sentence.  The appellate court goes on to conclude that the aggravating factors supported the departure, and that the factors were “severe,” thus satisfying the requirements for a greater than double departure.

Supreme Court Says a Defendant Sort of Has a Due Process Right to Call Witnesses at a Bail Hearing

State v. LeDoux, Minn.S.Ct., 8/13/2009.  The state charged Mr. LeDoux with a cornucopia of crimes:  criminal sexual conduct in the first degree, possession of pornographic works involving minors, possession of a controlled substance in the fifth degree, and furnishing alcohol to a minor.  The district court set a combined bail in the amount of $263,000.00.  Mr. LeDoux thought that amount was a bit much and wanted to present witness testimony to prove it.

The corrections officer who prepared the bail study interviewed several people, after which the officer recommended that the bail amount was supported by the facts, and by the “community reaction” to Mr. LeDoux’s alleged crime spree.  Mr. LeDoux’s attorney then subpoenaed the witnesses whom the corrections officer had interviewed and the corrections officer.  The trial court quashed the subpoenas and ruled that Mr. LeDoux had no right to call witnesses at a bail hearing.  The trial court did, however, permit Mr. LeDoux to make an offer of proof.  It’s worth reproducing the summary of this offer of proof (although you can skip it if you just want to know how it all comes out):

First, LeDoux offered proof to rebut statements by the witnesses in the bail-bond study that they were “terrified” of him or regarded him as a threat to the community. LeDoux offered information that in the years since the alleged sexual assault on the juvenile victim, he and the victim became closer and frequently had non-sexual contact with each other. He also offered proof that the victim’s mother would testify that, despite her desire to avoid contact with LeDoux, she had helped him obtain health insurance and mental health counseling. In addition, LeDoux offered proof that his ex-girlfriend was not terrified of him because, despite the fact that she had obtained an order for protection she had repeatedly contacted him in jail.
LeDoux also made offers of proof as to his good character. LeDoux made an offer of proof that a counseling psychologist who was a friend of his mother would say that LeDoux was a person of good character and was not a threat to the community. He also offered proof that his mother would allow him to live with her, would assist him after his release, and believed that LeDoux did not represent a threat to the community.

Finally, LeDoux attempted to call as a witness the corrections officer who prepared the bail-bond report. LeDoux claimed that the officer would testify as to LeDoux’s lifelong residency in the area, lack of family ties outside the area, and lengthy employment history. LeDoux wanted the opportunity to cross-examine the officer about his conclusions as to LeDoux’s mental condition.

About the only concrete thing that the appellate court did was to say that “community reaction” is not a proper basis on which to establish the amount of bail.  The appellate court next concluded that the bail amount, which Mr. LeDoux could not meet, infringed his liberty interests.  It ducks deciding whether the imposition of pretrial release conditions also infringes a liberty interest, although it refers to a rather old opinion saying that it does.  Finally, it gets to the meat of the opinion, whether Mr. LeDoux can call witnesses at a bail hearing.

The answer is yes, maybe.  Here’s the test that the court enunciates but does not apply to Mr. LeDoux because while all the appeals were going on he went and pleaded guilty:

[W]e hold that at a bail hearing, a defendant may only call a witness if the defendant makes a persuasive offer of proof that the witness’s testimony, when considered in the context of all the other relevant available information, will lead to either release without bail or a reduction in the bail amount to a level that would result in the defendant’s release.

The appellate court lifts this test language from State v. Rud, 359 N.W.2d 573 (Minn. 1984).  That opinion answered the question whether a defendant could call the victim to testify in a probable cause hearing.  Just how trial courts will apply this variation of the Rud test in the bail hearing context doesn’t seem hard to predict and in any event won’t be disturbed absent an abuse of discretion.