Court of Appeals Says That All First Degree Burglaries of Occupied Dwelling Are Subject to Six Month Mandatory Minimum Sentence.

State v. Rausch, Minn.Ct.App., 5/23/2011.  After arguing with her ex-boyfriend, outside his home, Ms. Rausch entered his home without consent, assaulted him and then damaged his vehicle.  For this the state charged her with two counts of burglary – her first ever burglary - among other offenses.  Ms. Rausch entered a guilty plea to one count of burglary of an occupied dwelling under a plea agreement that called for a stay of imposition of sentence and an acknowledgment that Ms. Rausch would be asking for a departure from the mandatory minimum sentence of six months incarceration.  The trial court granted the departure and imposed a sixty day sentence – fifteen days in the workhouse and forty five days of alternative service. 

The state appealed, saying that the trial court had no authority to ignore the six month mandatory sentence that is contained in Minn.Stat. 609.582, subd. 1a:

A person convicted of committing burglary of an occupied dwelling, as defined in subdivision 1, clause (a), must be committed to the commissioner of corrections or county workhouse for not less than six months.

Seems pretty clear:  six months minimum for burglary of an occupied dwelling.  But Ms. Rausch argued that another statute, Minn.Stat. 609.583, still gives the trial court the discretion to depart from the presumptive sentence:

Except as provided in section 609.582, subdivision 1a, in determining an appropriate disposition for a first offense of burglary of a dwelling, the court shall presume that a stay of execution with at least a 90-day period of incarceration as a condition of probation shall be imposed unless the defendant’s criminal history score determined according to Sentencing Guidelines indicates a presumptive executed sentence, in which case the presumptive executed sentence shall be imposed unless the court departs from the Sentencing Guidelines pursuant to section 244.10. A stay of imposition of sentence may be granted only if accompanied by a statement on the record of the reasons for it. The presumptive period of incarceration may be waived in whole or in part by the court if the defendant provides restitution or performs community work service.

The appellate court says that 609.582 is more specific than is 609.583, so the former controls.  Actually, what it’s doing is legislating from the bench by changing the phrase “burglary of a dwelling” to “burglary of an occupied dwelling”.  That is, 609.583 applies only to the first burglary of an unoccupied dwelling, while 609.582 applies to all burglaries of an occupied dwelling.

A Plea Agreement, Alone, Does Not Support a Sentencing Departure; Where No Reasons Were Stated, Presumptive Sentence is Only Permissible Sentence on Remand

State v. Haggins, Minn.Ct.App., 5/3/2011.  A jury convicted Mr. Haggins of fourth degree assault for head butting a correctional officer at the Stillwater prison.  Mr. Haggins represented himself during trial, with the presence of stand by counsel.  After conviction, stand by counsel negotiated a six month upward sentencing departure; Mr. Haggins waived his right to a jury determination of any aggravating factors.  Other than the negotiated agreement the trial court made no findings to support the departure.

A plea agreement, standing alone, does not create the substantial and compelling circumstances that are necessary to support a departure.  State v. Misquadace, 644 N.W.2d 65, 71 (Minn. 2002).  Because the trial court did not even attempt to state reasons, the appellate court cannot flyspeck the record in search of such reasons.  The matter must be remanded, and the trial court can only impose the presumptive sentence.  No redo.  State v. Rannow, 703 N.W.2d 575 (Minn. App. 2005).

Trial Court Had Proper Grounds to Support Upward Durational Departure

State v. Weaver, Minn.Ct.App., 5/3/2011.  Mr. Weaver has twice – once by jury, once by judge – been convicted of unintentional murder - killing his wife in the laundry room of their home - and then setting fire to the house to disguise the homicide.  The parties disputed the cause of death; the state said that the wife died from carbon monoxide inhalation during the fire, but the defense said it could not be determined whether death had been from her head injury or from carbon monoxide.  The judge sided with the state, finding that she had died from inhalation of carbon monoxide.  The judge also found that the wife would have survived the head injury had she received medical assistance and that Mr. Weaver believed that the wife was dead when he lit the fire.  The court denied Mr. Weaver’s request for a downward durational departure, and imposed an upward departure of half again what the Guidelines called for on the basis of particular cruelty.

There were two actions that the trial court said supported a departure based on particular cruelty.  First, Mr. Weaver failed to summon aid that could have saved his wife’s life.  Second, instead of calling for help he set the fire in an effort to destroy evidence, especially his wife’s body.  Mr. Weaver challenged both of these assertions.

Failure to render aid:  This cannot be an aggravating factor in an intentional homicide.  State v. Robideau, 783 N.W.2d 390 (Minn.Ct.App. 2010), rev’d on other grounds, __ N.W.2d __ (Minn. Mar. 23, 2011).  The appellate court ducks the question whether such failure can be a permissible departure reason in an unintentional homicide because it likes other reasons better to support this departure.

Like torching the wife’s body.  Almost twenty-five years ago the court of appeals upheld a sentencing departure based on a defendant’s torching of his victim, even though he believed that the victim was dead.  State v. Direcks, 412 N.W.2d 765 (Minn.Ct.App., 1987).  Mr. Weaver objected to this reasoning, arguing that torching the body was either part of the arson or uncharged conduct (Concealment, Minn.Stat. 609.502.)  Arson, however, is an exception to the cumulative punishment prohibition of 609.035 and so the arson can be both the underlying offense of the felony murder and a basis for departure.  State v. Jones, 745 N.W.2d 845, 849 (Minn. 2008). 

The appellate court also thought that because the wife suffered multiple injuries, inflicted by two different methods – assault and fire – the departure was proper.  Finally, the appellate court upholds the trial court’s denial of his departure motion.  He had asked the trial court for a presumptive sentence equal to what that sentence had been before a legislative change back in 1989, which Mr. Weaver argued had been made for political reasons rather than empirical research.  The appellate court declines to hold that disagreement with a particular guideline is a proper basis for a departure.

Animal Rights Protests Were Protected Speech

State v. Peter, Minn.Ct.App., 5/3/2011.  Back on March 4, 2010, as was their wont, Mr. Peter and Mr. Lawson were conducting an animal rights protest outside Ribnick Fur; the men were chanting, carrying signs or banners and trying to talk to people (“Do you know they clubbed fifteen baby minks to make that fur coat you’re ogling?).  The men neither entered the store nor stopped any customers from entering the store.  They were yelling loudly.  They were heard to inform the owner of the fur store that they knew where he lived and that they knew his vehicle license plate number.  Some observers across the street claimed that the men were harassing customers so the officers arrested the pair for disorderly conduct.  A jury – all wearing fake rabbit - convicted them nonetheless.

The appellate court reverses for want of sufficient evidence.  Chanting about killing baby seals and the like is protected speech so long as it does not rise to the level of “fighting words.”  Back in the day, protesters who called police officers “mother fucking pigs” were thought to have crossed that line.  State, City of Minneapolis v. Lynch, 392 N.W.2d 700, 703-04 (Minn. App. 1986).  On the other hand, when a fourteen year old girl told two officers, who were sitting in a squad car thirty feet from her, “fuck you pigs,” she was protected from prosecution.  In re Welfare of S.L.J., 263 N.W.2d 412, 419-20 (Minn. 1978). 

Then there are matters of “public concern.”  Like gay bashing at funerals of servicemen killed in either Iraq or Afghanistan.  Snyder v. Phelps, 131 S.Ct. 1207 (2011).  As odious as it apparently was, the protest was protected speech.  Public protest cases, like this one, inevitably involve both speech and expressive conduct as well, like moving around, waving signs and the like.  Holding signs, chanting, commenting about killing baby seals – none of that is “fighting words.”  Doing all this, without benefit of a bullhorn,  on a downtown Minneapolis street in the afternoon was also protected.  For all that, the state’s evidence was insufficient to support a conviction of disorderly conduct.

No Miranda Warning Required For Non-Custodial Interrogation

State v. Vue, Minn.S.Ct., 4/27/2011.  A jury found Mr. Vue guilty of crime committed for the benefit of a gang (first degree murder while committing drive-by shooting).  Officers focused on Mr. Vue as a possible suspect; they learned that he was in Sacramento, California so they hopped a plane to go see him.  Officers met with Mr. Vue at the local police station; the officers told him that he was not under arrest and was free to leave.  When the officers began to ask questions about the homicide Mr. Vue ended the interview.  A local officer then gave him a ride home.

Two days later, the Minnesota officers again met with Mr. Vue at the local police station.  Eight minutes into the meeting Mr. Vue confessed to the homicide.  At the end of that interview local officers again gave Mr. Vue a ride home.  Mr. Vue then disappeared and it was three years later before police arrested him on the murder.

Mr. Vue moved to suppress the statements he made during the second interview, saying that this second interview had been a custodial interrogation for which a Miranda warning was required but not given.  Mr. Vue did not claim that his statement had been involuntary.

Now for the rest of the story on this second interview.  Before this interview a bunch of cops – eight of them to be exact – stormed into Mr. Vue’s Sacramento home to execute a search warrant.  The officers found only Mr. Vue home.  The officers handcuffed Mr. Vue in the kitchen, telling him that “this is not going away.”  The officers then took the cuffs off Mr. Vue and let him walk around in the yard.  Mr. Vue agreed to be interviewed and rode in the front seat of the squad car to the police station.  The officers left him unattended in the lobby for a while during which Mr. Vue could have left.  During the interview he was told that he was not under arrest and that he would not be arrested that day.  He was not arrested then; indeed, the officers took him home afterwards.

The appellate court concluded that Mr. Vue was not in custody during this second interview and thus no Miranda warning was required.

Mr. Vue also complained of prosecutorial misconduct in closing argument.  The prosecutor said that the jury would have to believe the impossible by believing that Mr. Vue might have admitted to something that he didn’t do.  The appellate court concluded that this was close to misconduct but let it go because the prosecutor immediately linked that assertion with a discussion of the confession that made it a true confession.

Failure of Lower Sioux to Have Requisite Liability Insurance Limits Deprive Lower Sioux Officer of Authority to Demand Breath Testing.

State v. Hester, Minn.S.Ct., 4/27/2011.  A Lower Sioux police officer arrested Mr. Hester on suspicion of driving under the influence.  The officer took Mr. Hester to jail where he asked him to submit to further testing.  Mr. Hester refused.  The state charged Mr. Hester with test refusal and a jury convicted him of that offense.

Mr. Hester filed a motion for a new trial.  He argued that he had not committed a crime when he refused the officer’s request for further testing because the officer did not have the authority under state law to require him to submit to testing.  Mr. Hester said that there were two reasons why the officer lacked this authority.  He said:

that the Lower Sioux police officer who arrested him did not qualify as a “peace officer” because Lower Sioux police officers are not specifically listed in the definition of “peace officer” in Minn. Stat. § 169A.03, subd. 18. He also argues that the Lower Sioux police officer who arrested him did not have the authority to request that he submit to a chemical test because the Lower Sioux did not satisfy the liability insurance requirements of section 626.91, subdivision 2.

First claim:  There are two statutes in play.  Minn.Stat. 169A.03, Subd 18 says that a “peace officer” includes a police officer of any county.  The other statute, Minn.Stat. 626.91, says that the Lower Sioux has the powers of a law enforcement agency if the requirements in subdivision 2(a) of that statute are met.  In that case, Lower Sioux officers have the same authority as officers appointed by the county sheriff.  So, a Lower Sioux officer is a “peace officer”.

Second claim:  Subdivision 2(a)(2) of 626.91 requires that the Lower Sioux file a bond or certificate of insurance for liability coverage in specified amounts.  The Lower Sioux had liability insurance at the time of Mr. Hester’s arrest, but the limits did not coincide with the required amounts.  The state argued that “close enough for government work” should be the test but the appellate court rejects this test.  Rather, the controlling distinction is between failure to comply with a technical provision of a statute versus failure to comply with the substance of that statute.  The Lower Sioux didn’t have the correct amount of insurance coverage, which is not a technical violation.  As a consequence the officer had no authority to require Mr. Hester to submit to testing.

Assault as The Intentional Infliction of Bodily Harm Is A Specific Intent Crime For Which Voluntary Intoxication is a Defense.

State v. Fleck, Minn.Ct.App., 4/26/2011.  Mr. Fleck went on a bender, drinking for “seven days straight.”  When his girlfriend, K.W., came home, Mr. Fleck stabbed her.  He then made several phone calls and then sat down to await the arrival of the police.  Mr. Fleck told the police that he had taken forty Serquel pills; shortly thereafter he passed out.  Officers took him to the hospital where his blood alcohol level registered .315.

The state charged him with second degree assault.  There are two ways that you can commit this crime:  act with intent to cause fear in another of immediate bodily harm or death; and intentionally inflict or attempt to inflict bodily harm upon another.  Minn.Stat. 609.222, subd 1.  Mr. Fleck relied on the defense of voluntary intoxication.  The state objected, saying that the later assault is a general intent crime for which voluntary intoxication is not a defense.  The trial court agreed, but instructed the jury, nonetheless, that voluntary intoxication was a defense to an act with intent etc. 

But, was Mr. Fleck entitled to an intoxication instruction on the form of assault defined as the intentional infliction of bodily harm upon another?  The answer depends on whether this form of assault is a specific intent crime.  It turns out that the answer is, yes.  Intent to harm makes this form of assault a specific intent crime.  In fact, the Minnesota Supreme Court had already said this was so, back in 1998.  State v. Edrozo, 578 N.W.2d 719 (Minn. 1998). 

Mr. Fleck had requested a voluntary intoxication instruction that would be applicable to both forms of assault.  When the trial court said it would not give that instruction for both forms of assault, Mr. Fleck made no further objections to the court’s instructions.  As a result, the state said that Mr. Fleck had failed to preserve the objection and thus the error had to be considered under a plain error analysis.  The appellate court rejects this contention.  Mr. Fleck asked for an instruction and didn’t get it.  He preserved the issue for review on appeal.

The jury had acquitted Mr. Fleck on the assault based on an act with intent to cause fear, etc.  The error in not extending the voluntary instruction to the other form of assault was prejudicial error.  Mr. Fleck gets a new trial.

State’s Proof Insufficient To Prove Drive By Shooting

State v. Brown, Minn.Ct.App., 4/19/2011.  The state charged Mr. Brown with a drive by shooting but apparently all that they could muster as evidence was that Mr. Brown drove to the shooting.  There’s a difference.

Mr. Brown had a thing going with three other guys:  Randell, Curtis, and Anthony; their rambunctious arguments and fisticuffs were renowned up in Alexandria.  This escapade began when Randell, Curtis and Anthony were sitting around one night drinking, during which Anthony noticed a car drive past the house two times.  Nothing else.  Sometime later, none of the guys could exactly say how much later, Anthony heard gunshots that he believed were being fired at the house. 

Before all this happened, Mr. Brown and his buddy, Russel, had asked this girl, Kujawa, to give them a ride to Brown’s girlfriend’s house.  When Kujawa stopped the car, at Mr. Brown’s directive, Russel and Mr. Brown got out and commenced to argue; Kujawa turned up the volume on the radio and began rummaging through the glove box (apparently to make a kind of white noise to mask the argument).  Russel got back into the car and the two of them had this heart to talk about relationships:  theirs, Russel’s new relationship, Kujawa’s marriage.  While all that was happening Kujawa couldn’t help hearing these load noises that she later understood were gunshots but at the time she thought was Mr. Brown thumping on a wall.  Mr. Brown got back in the car.  Even later still, Kujawa came to realize that she had stopped her car within blocks of where Anthony was hearing gunshots.

The drive by shooting statute says that if you don’t shoot from your car then you have to have “just exited” that car when you pull the trigger.  The existential question is how far can one be from one’s car and still commit a “drive by” shooting.  A decade ago, one Mr. Lewis drove to a city park, jumped out of car, ran across to the other side of the city park, waited (only a few seconds) for his victim to dribble a basketball down the court, shot him, walked back to his car, got in, and left.  State v. Lewis, 638 N.W.2d 788 (Minn.Ct.App. 2002).  In Lewis, the court said that the act of shooting must “immediately follow” the exit from the car. 

Here, both sides agreed that Anthony’s account was worthless; both sides argued whether Kujawa’s account was enough to convict.  The court of appeals says, no:

The state proved beyond a reasonable doubt at most that Brown engaged in a drive-near-the-area-get-out-of-the-car-argue-for-awhile-walk-“a few”-blocks-fire-the-gun-walk-back-to-the-car-and-drive-away shooting.

Mr. Brown walks.  Back to his car one supposes.

Remand To Make Findings on Why Trial Court Removed Spectators From Courtroom

State v. Infante, Minn.Ct.App., 4/19/2011.  During Mr. Infante’s jury trial for second degree assault the trial court booted his sister and a young child from the courtroom during the prosecutor’s closing argument.  Apparently, when sister and child came into the courtroom the prosecutor complained that their arrival threw him (or her) off his (or her) game.  The bailiff tossed them out into the hallway.

The judge can’t just toss people out of a public courtroom; there are rules about this:  Waller v. Georgia, 467 U.S. 39 (1984).  Tossing people improperly is a structural error – a defendant’s right to a public trial – that is not subject to harmless error.  State v. Bobo, 770 N.W.2d 129 (Minn. 2009).  To overcome the presumption that the courtroom is open to everyone:

(1) the party seeking closure must “advance an overriding interest that is likely to be prejudiced” if closure is denied, (2) “the closure must be no broader than necessary to protect that interest,” (3) the district court “must consider reasonable alternatives to closing the proceeding,” and (4) the court “must make findings adequate to support the closure.”

Here, there is nothing in the record to satisfy any of these four factors.  Although on appeal the state offered up some possible explanations, they were not supported by anything in the record.  So, the court sends the case back to the trial court for a redo, to see if that court can support the exclusions.

Mr. Infante also complained that the jury should have been instructed that they had to reach a unanimous decision about which of two acts constituted the assault.  The appellate court reviewed this claim under plain error and found none.  A statute that establishes alternative means for satisfying an element, unanimity on the means is not required.  State v. Ihle, 640 N.W.2d 910 (Minn. 2002). See State v. Dalbec, 789 N.W.2d 508 (Minn.Ct.App., 2010).  Mr. Infante’s two actions occurred at the same place and involved the same victim and were thus part of a single behavioral incident.  Each of the actions was a means for accomplishing an element of the offense.

A Minnow is Not a Fish

State v. Barsness, Minn.Ct.App., 4/12/2011.  Mr. Barsness was harvesting minnows, for which he held a valid license, when a DNR officer came along.  Mr. Barsness was operating on a lake that was not infested with the spiny water flea but with equipment that he had also used in an infested lake.  Equipment that is used in “commercial fishing” in an infested lake can’t be used in any other waters.  So, the state charged Mr. Barsness with using equipment in violation of his license.

Problem is, minnow harvesting is not “commercial fishing,” which is defined to be “taking fish, except minnows, for sale.”  Minn.Stat. 97A.015, subd. 9.  Minnows are not fish under the game and fish laws.  The court reversed his conviction.

Officers Lacked Reasonable Suspicion and Did Not Have Valid Consent to Have Seized Narcotics.

State v. Diede, Minn.S.Ct., 3/30/2011.  A deputy sheriff was staking out the residence of Jason Hanson, intending to arrest him for a previous drug charge.  Eventually, Jason and Ms. Diede left the residence in a gray pickup truck; Ms. Diede was driving.  The deputy learned that the plate on the pickup belonged to a red pickup.  When the gray pickup stopped at John Hanson’s residence the deputy believed that he saw Jason toss something back into the truck seat.  The deputy arrested Jason.

By this time Ms. Diede had got out of the truck. The deputy told her to stay put because he needed to talk to her.  She complied, standing around with her hands in her pockets.  The deputy asked her if she’d seen Hanson throw something back into the truck; she said she had not.  He then asked her what she had in her pockets.  She said she had a pack of smokes and a lighter.  She would not permit the deputy to look inside this cigarette package when he asked.  When requested to do so by a second cop, Ms. Diede turned out her pockets and produced a second cigarette package.  She then either immediately flipped open the top of the cigarette package or did so when asked, depending on which cop you asked.  The cops could then see the ends of a plastic baggie protruding from the package, which Ms. Diede quickly shut and started to crush.  The officers pried the package out of her hand.  The contents of the baggie tested positive for methamphetamine and weighed 0.3 grams.

Ms. Diede moved to suppress the methamphetamine.  First, she said that the deputies did not have a reasonable suspicion that she was involved in criminal activity at the time they seized her, which the parties agreed occurred when the deputy told her to stay put after she got out of the car.  The district court had concluded that the deputies had sufficient suspicion, based on these six factors:

(1) “Hanson, a passenger in Defendant’s vehicle, was being taken into custody on [probable cause for previous sales of] controlled substances”;

(2) Detective Jensen, before Hanson got out of the truck, saw Hanson looking at him and “moving [Hanson’s] right hand as if he was reaching in his pocket for something”;

(3) as Hanson got out of the truck, Detective Jensen “observed what he believed to be Hanson tossing something back into the vehicle”;

(4) Diede remained in the vehicle;

(5) Diede “denied that Hanson had thrown anything back into the vehicle”; and

(6) Diede appeared to be “nervous” and “fidgety” as she was questioned.

The court of appeals thought that the first four factors were sufficient to uphold the search.  Justice Meyer, in a 4-3 decision, also looks at the first four factors since the remaining two didn’t exist at the time the deputies seized Ms. Diede.  Justice Meyer found these factors woefully lacking:

The remaining four facts on which the district court relied do not provide an objective basis for suspecting that Diede was engaged in the criminal activity of possessing a controlled substance. The only basis in the record for suspecting that anyone possessed drugs was Detective Jensen’s assertion that he had probable cause to arrest Hanson for previous drug sales. But the record does not describe the foundation of that probable cause. Nor does it indicate any objectively articulable facts that would have allowed the police to reasonably infer that Hanson was carrying drugs at the time of his arrest on April 22. The record also does not indicate whether Hanson recognized Detective Jensen as a law enforcement officer, which would be necessary to support the officer’s suspicion that Hanson left something in the truck in response to the presence of the police. The record does not indicate that any of the officers saw Diede reach for anything while she was in the truck or that the officers looked into the truck to see if the object they saw Hanson leave there had been removed from the truck.

The court also concluded that because the officers did not have a reasonable suspicion that Ms. Diede was engaged in drug related criminal activity, the request to search the cigarette package exceeded the scope of any temporary investigative seizure.  Next, the majority rejects the claim that Ms. Diede consented to that search:

At the time Diede opened her cigarette package, she had been seized, was subject to a show of police force, had received repeated requests to open the package, and had already refused consent to search the package.

Finally, the court rejects the claim of inevitable discovery of the meth, concluding that the state was relying on improper factors to support that claim.  Refusal to consent cannot establish probable cause to search.  Cf. State v. Jones, 678 N.W.2d 1, 12 n.3 (Minn. 2004).  Her nervousness under police questioning,alone, does not establish probable cause.  State v. Lothenbach, 296 N.W.2d 854, 858 (Minn. 1980), superseded by rule on other grounds, Minn. R. Crim. P. 26.01, subd. 4. 

Justice Dietzen, joined by Chief Justice Gildea and Justice Stras, dissented, concluding that the officers had both reasonable suspicion and a valid consent.

Aggravating Factor, “Presence of Child” Means Seeing, Hearing, Witnessing Some Portion of the Commission of the Offense.

State v. Robideau, Minn.S.Ct., 3/23/2011.  A jury convicted Mr. Robideau of stabbing his girlfriend to death.  The court imposed an aggravated sentence based, in part, on the presence of a child in the house where the stabbing occurred.  The child did not see, hear, or otherwise witness the stabbing.  The court of appeals affirmed the aggravated sentence, reasoning that Mr. Robideau knew it was highly likely that the child would discover the body, which is exactly what happened.  See here.  The supreme court reverses the court of appeals.

Previous opinions have established, generally, that the presence of a child can be an aggravating factor.  State v. Profit, 323 N.W.2d 34 (Minn. 1982).  This factor is now codified at Minn.Stat. 244.10, subd. 5a(13).  Profit said that “presence” meant two things:  the child actually witnessed the offense; and the victim is particularly vulnerable due to the child’s presence in the home.  More recently, the supreme court has said that a child who is only within “sight or sound” of the offense is not “present.”  This is because the child must see, hear or otherwise witness the offense.  State v. Vance, 765 N.W.2d 390 (Minn. 2009).

Here, the state argued that the child’s discovery of the body is “presence” enough.  Mr. Robideau countered that no, the child must be cognizant of the crime as it is being committed.  Justice Dietzen, writing for a unanimous court, sides with Mr. Robideau.  The court vacates the sentence and remands for a sentencing redo.

Restitution Order Reduced From $19K to $156.00

State v. Nelson, Minn.Ct.App., 3/22/2011.  Ms. Nelson worked for a tanning salon.  The owner of the salon discovered that Ms. Nelson and three other salon employees were helping themselves to free, after hours tanning; and the four were also giving free tanning sessions to others.  The owner estimated that the salon had lost $7,700.00 in lost revenue.

The state charged Ms. Nelson with felony theft by swindle, alleged to have occurred during a specified period of time.  However, the state did not file the charge until after the three year limitations period had run.  The trial court dismissed this court (as well as a similar count against the three coworkers).  The state also charged Ms. Nelson with misdemeanor theft for the free tanning sessions that she had (presumably) enjoyed during a period of time separate from the felony time period.  Ms. Nelson pleaded guilty to that misdemeanor, agreeing to pay restitution determined by the trial court.

The salon’s owner presented a bill for $24,412.  Here’s how it broke down:

New computer software:	$690.00
New computer hard drive:	$700.00
Stolen tanning services:	$7,668.00
Employee hours spent reconstructing the thefts:	$2,604.00
“Personal hours”:	$12,750.00

The trial court awarded $19,412.00, subtracting an insurance payout of $5,000.00.  The appellate court orders a refund.

Whether an item meets the statutory requirements to qualify for an award of restitution is a question of law that the appellate court reviews de novo.  A loss claimed must be directly caused by the conduct for which the defendant was convicted.  State v. Latimer, 604 N.W.2d 103 (Minn. App. 1999). 

Here, most of the restitution awarded was for losses that occurred outside the period of time covered by the misdemeanor conviction.  Gone.  The award also included losses flowing from the conduct of Ms. Nelson’s coworkers, whose theft by swindle charge had also been dismissed on limitations grounds.  Gone.  As to the computer software and hardware, the state failed to show that these items were either broken or damaged.  Gone.  The employee and personal hours totaled over fifteen hundred hours, which the appellate court found to be excessive.  Gone

That leaves the value of the tanning sessions of which Ms. Nelson, herself, partook:  $156.00.  The appellate court finished by reminding trial courts of its duty to consider whether a defendant has the ability to pay restitution.

One Defense Attorney Disqualification Upheld; One Refusal to Disqualify Next Defense Attorney Upheld.

State v. Patterson, Minn.Ct.App., 3/15/2011, petition for review filed, 4/14/2011.  A jury convicted Mr. Patterson of aiding and abetting drive by shooting and aiding and abetting second degree murder.  The real dust up in this appeal, however, is over who gets to be the lawyer.

R.A. was the victim of the murder, and T.D., a passenger in R.A.’s car, was the victim of the drive by shooting.  Leroy Paul was driving Patterson around at the time of the drive by.  Paul pleaded guilty to second degree murder, agreeing to testify against Mr. Patterson.

Mr. Patterson first retained Eric Newmark to represent him.  The state said that Mr. Newmark had a conflict of interest due to his previous representation of three of the state’s witnesses and moved to disqualify him; the trial court granted that motion.  Next, Mr. Patterson retained Barry Voss, who, as it happens, had represented Mr. Paul on a separate but related murder.  The state moved to disqualify Mr. Voss.  Mr. Voss said that Mr. Paul had not made any privileged communications about the murder of R.A.  Mr. Paul’s attorney in the R.A. murder said that while he thought that was correct, if Mr. Paul had made privileged communications to Mr. Voss then Paul would not waive attorney-client privilege.  Paul said it was okay by him for Mr. Voss to represent Mr. Patterson so long as Mr. Voss could not cross examine him; that is, so long as Mr. Voss retained independent counsel to cross examine Paul.  The trial court thought that was okay so long as Mr. Patterson waived any effective assistance of counsel claim pertinent to Mr. Voss’s potential conflict of interest.  Mr. Patterson provided that waiver.

On appeal Mr. Patterson complained that the trial court had denied him his counsel of choice by disqualifying Mr. Newmark; and had denied him conflict free counsel by refusing to disqualify Mr. Voss.  In rejecting these claims, the appellate court observed that the trial court is allowed “substantial latitude” in disqualification before trial of an attorney who is facing an actual or serious potential for a conflict of interest.  The trial court may consider these four factors:

1) the prejudice to the defendant which would result from the disqualification of his lawyer; (2) the state’s interest in preserving the finality of a judgment in the face of an ineffective-assistance-of-counsel claim; (3) the court’s interest in preserving the ethical standards of the legal profession; and (4) the public’s interest in having a criminal justice system that is perceived as fair.

The appellate court engaged in a lengthy analysis of Mr. Newmark’s potential conflicts and determined that the conflict existed and that it could not be remedied.  The court then considered the refusal to disqualify Mr. Voss.  The appellate court determined that if Mr. Patterson made a valid waiver of that conflict then that was the end of it.  The court’s analysis is not under the dual representation rule and case law.  Rather, the court applies case law on waiver of the right to counsel in general.  See State v. Richards, 456 N.W.2d 260 (Minn. 1990).  This is a Faretta analysis.  Faretta v. California, 422 U.S. 806 (1975).  The waiver must be knowing, voluntary and intelligent; and the court must also make a defendant aware of the “dangers and disadvantages” of continuing with the representation.  The appellate court concluded that under this standard Mr. Patterson’s waiver was valid. 

Criminal Rule 26.01 Continues to Vex

State v. Burdick, Minn.Ct.App., 3/15/2011.  How to play under Rule 26.01, subd. 4 keeps coming up, with the parties and the courts struggling to adhere to the rules.  Subdivision 4 is supposed to be reserved for appellate review of dispositive pretrial rulings, and is a codification of State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  See here and here or the gory details. 

Police arrested Ms. Burdick for driving while impaired; her blood alcohol level registered 0.19.  Before trial, Ms. Burdick tried to raise a challenge to the blood alcohol test but the trial court said she had raised this too late under the rules.  So, she agreed to submit the case for a decision under Rule 26.01, subd. 4.  This rule sets out the procedure that must be followed in order to preserve pretrial issues for appellate review.  Most importantly, the parties must acknowledge that the pretrial ruling is dispositive of the case or that in the evet that a defendant prevails on appeal a contested trial would not be necessary.  Subd. 4 also limits appellate review to those dispositive pretrial rulings.

Well, the parties didn’t say any of those things.  Even more problematic, what was actually being reviewed on appeal was the denial of a hearing on the suppression issue; an appellate court decision in Ms. Burdick’s favor only results in the resumption of litigation, including a trial.  Not what the rule had in mind. 

If An Officer Sees a Black Man Wearing a Black Hoodie, Carrying a Pistol, That’s Probable Cause to Arrest Him For Carrying A Pistol Without a Permit

State v. Williams, Minn.S.Ct., 3/9/2011.  Minneapolis police officers responded to a radio report of a robbery that involved the use of a gun.  The officers had a description – tall black male, wearing a black hooded sweatshirt – and a direction of travel – running west from 22nd Street and Emerson Avenue North.  An officer saw a tall black man wearing a black hooded sweatshirt running west on 22nd.  A foot chase ensued, during which the tall black man wearing a black hooded sweatshirt turned to his right, which exposed the butt of a handgun sticking out of the right front pocket of his sweatshirt.  Mr. Williams was the tall black man wearing a black hooded sweatshirt with a gun sticking out of one of the pockets of the black hooded sweatshirt.  How unlucky is that?

It gets worse.  The robbery victim was unable to identify Mr. Williams as one of the robbery suspects.  So, instead of charging Mr. Williams with robbery, the officer arrested him anyway, charging him with something to do with with possession of the gun.  The officer neither asked Mr. Williams to produce a permit for the pistol nor determined independently that Mr. Williams didn’t have a permit for the pistol.  It’s still a secret to this day whether he had a permit for the pistol.

What he did have, unfortunately, was cocaine, which Mr. Williams disclosed to the officer at the entrance to the jail.  That’s why the state charged Mr. Williams with possession of cocaine while in possession of a firearm.  Minn.Stat. 609.11, subd. 5:

[A]ny defendant convicted of an offense listed in subdivision 9 in which the defendant or an accomplice, at the time of the offense, had in possession or used, whether by brandishing, displaying, threatening with, or otherwise employing, a firearm, shall be committed to the commissioner of corrections for not less than three years…

Now, back to the permit for the pistol.  When the officer arrested Mr. Williams for possession of the pistol did he have probable cause to believe that Mr. Williams was in violation of the pistol permit statute:

A person . . . who carries, holds, or possesses a pistol . . . on or about the person’s clothes or the person . . . in a public place . . . without first having obtained a permit to carry the pistol is guilty of a gross misdemeanor. A person who is convicted a second or subsequent time is guilty of a felony.

Easy question to answer once you know that long long ago in a galaxy far away the Court had the prescience to have construed this statute to avoid this very problem.  State v. Paige, 256 N.W.2d 298 (Minn. 1997).  Paige says that you can’t carry a pistol in a public place, so that’s the starting point.  If you have a permit then you don’t get charged, but the only elements of the offense are possession of a pistol in a public place.  The officer saw the gun sticking out of Mr. Williams’ pocket, heard him admit that he had the gun and confirmed that admission by removing the gun from his pocket.  There was ample probable cause under these facts to have arrested Mr. Williams for possession of the pistol.

Mr. Williams took one more run at the statute.  He argued that by creating a presumption that possession of a pistol in a public place is illegal the statute runs afoul of the opposite presumption created by the Second Amendment.  The Court’s not going there, however, for the reason that Mr. Williams did not raise this issue in the trial court.

Justice Page concurred in the result but offered this acerbic observation about the statute’s presumption that it’s illegal to carry a pistol in public:

While I concur in the result, I write separately to note that it is likely to come as a shock to all those people who have obtained a permit to carry, hold, or possess a pistol in a public place that by carrying, holding, or possessing the permitted pistol in a public place they subject themselves to arrest under Minn. Stat. § 624.714, subd. 1a (2010).

Money Matters: Restitution, Identity Theft, That “PD Fee”.

It seems that money is on the court’s mind in more ways than the budget battles going on up at the capitol.  Here is a look at three recent opinions that take up money.

Anderson v. State, Minn.Ct.App., 2/8/2011, petition for discretionary review filed, 3/10/11. 

Mr. Anderson pleaded guilty to one count of identity theft of eight or more victims.  The trial court sentenced him to a guidelines sentence and ordered him to pay $1,000.00 in restitution to each of twenty-eight victims that were identified in the criminal complaint.  Of the twenty-eight victims only seven returned restitution affidavits and only five of them requested restitution.  One victim requested only $72.94.  Mr. Anderson did not dispute that the twenty-eight individuals were “victims” under the identity theft statute.

The identity theft statute, Minn. Stat. 609.527, subd. 4, says that the court must order someone who is convicted of this crime to pay each  victim “restitution of not less than $1,000.00.”  The general restitution statute, Minn.Stat. 611A.045, subd. 3, establishes what a victim of a crime must submit to the court in order to claim restitution.  Mr. Anderson argued that these two statutes should be read together. 

The appellate court says, no.  The identity theft statute has no requirement for proof of loss; a victim gets a thousand bucks, minimum.  There are at least two nagging questions, however, that the court did not consider:

Must the state show that a victim under the identity theft statute incurred some loss.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate courts will generally not consider matters not argued and considered by district court).  Mr. Anderson’s challenge was a procedural one – failure to comply with the general restitution statute – and not a fact challenge, and so this question was not before either the trial or appellate court.

Also, the appellate court did not consider what to do with victims who claimed losses of more than $1,000.00 and how the general restitution statute fits into such a claim.

 

State v. Gaiovnik, Minn.S.Ct. 3/9/2011.

Mr. Gaiovnik and an associate robbed Hollister, a clothing store in the Rosedale Mall, of an amount that everyone decided to agree was $19,200.00.  No one recovered the money.  A jury duly convicted Mr. Gaiovnik of simple robbery and theft.  No one from Hollister bothered to send in the paperwork to request restitution.  The trial court ordered him, nonetheless, to pay the difference between $19,200 and any money paid by Mr. Gaiovnik’s accomplice.

Mr. Gaiovnik objected, saying that the trial court could not order restitution under the general restitution statute, Minn.Stat. 611A.04 unless the victim submits the paperwork.  The state countered by pointing to another statute, Minn.Stat. 609.10.  That statute provides that upon conviction of a felony, the court “may sentence the defendant . . . to payment of court-ordered restitution in addition to either imprisonment or payment of a fine, or both.” Minn. Stat. §  609.10, subd. 1(a)(5).

Just as Mr. Anderson did, Mr. Gaiovnik said that the two statutes should be read together, that the authority conferred under 609.10 is only triggered by compliance with the requirements of 611A.04.  Just as the Court of Appeals did, however, Chief Justice Gildea declines to do so.  Minn.Stat. 609.10 is an independent source of authority by which to order restitution.  The only limitation under this statute is the requirement that there be a factual basis for the award.  In this case, everyone agreed on the amount, nineteen thousand and some change. 

The court does emphasize the requirement under the general restitution statute that information about the amount of restitution being claimed must be received at least three business days before the sentencing hearing.  This calls into some ill repute the local practice in some courts to leave restitution “open” for some period of time, usually ninety days.  Making such an objection could lead to a continuance of the sentencing hearing so that the state could get its money ducks lined up. 

Where no restitution paperwork shows up, a defendant should refrain from stipulating to any restitution amount.  Indeed, if the state is seeking restitution only under 609.10, without any record of the amount – either from a trial or stipulation – there may be a valid demand for a jury trial to determine that amount.  Might be fun.

 

State v. Moore, Minn.Ct.App., 3/1/2011. 

This unpublished Opinion gets included only because Mr. Moore challenged the trial court’s imposition of the $75.00 public defender fee.  Although denominated “public defender fee” the money in fact goes into the general fund. 

The trial court imposed this fee by rote, having made no findings about whether Mr. Moore could pay it.  The appellate court wasn’t amused:

Both the legislature and the supreme court have clearly expressed their intent that a district court’s discretion to impose copayments is contingent on findings of a defendant’s ability to pay. See Minn. Stat. § 611.20, subd. 2 (2010) (“If the court determines that the defendant is able to make partial payments [for counsel], the court shall direct partial payments to the state general fund.”) (emphasis added); Minn. R. Crim. P. 5.04, subd. 5 (“If the court, after finding the defendant eligible for district public defender services, determines that the defendant now has the ability to pay part of the costs, it may require a defendant to make partial payments as provided in Minnesota Statutes, Section 611.20.”) (emphasis added). The imposition of the copayment is reversed.

So, the trial court has to make those findings, which, it would seem from the two cases just above, require a factual basis.  What’s the source of that factual basis?  The pre sentence report?  If so, should defendants (politely) decline to provide financial information (including releases) to the probation office?  Lastly, notice that it’s not an all or nothing proposition.  The trial court can determine that a defendant can only pay part of this fee.

Trial Court’s Failure to Advise Unrepresented Misdemeanor Defendant of Possible Immigration Consequences From Guilty Plea Satisfies Fair and Just Standard for Plea Withdrawal

State v. Lopez, Minn.Ct.App., 2/8/11.  Without benefit of counsel, Mr. Lopez, who is a permanent resident but not a citizen, pled guilty to a misdemeanor theft charge.  The trial court did not advise Mr. Lopez that if he were not citizen that the guilty plea may result in deportation, exclusion from admission to the United States or denial of naturalization.  This advisory is required under Rule 15.02, subd. 1(3).  Before sentencing he asked to withdraw the plea.  The trial court said no under the post sentencing standard of correcting a manifest injustice.

This is the wrong standard.  The correct one is “fair and just reason.”  The court of appeals declares that the rule’s requirement of the advisory is “fundamental” and defines the minimum standards for insuring that a plea is valid.  The court of appeals also considered that Mr. Lopez was not represented by counsel, that he did not sign a written plea petition, that he had only limited experience with the criminal justice system.  Finally, the court pointed to the recent Padilla decision to support its conclusion that the immigration consequences are “deeply important.” 

Court Approves Career Offender Sentence That is Eight Times Presumptive Sentence

Vickla v. State, Minn.S.Ct., 1/26/2011.  Mr. Vickla pled guilty to offering forged checks in an amount greater that $35,000.00.  He admitted that he qualified as a career offender under Minn.Stat. 609.1095, subd. 4, and agreed that the trial court could sentence him.  The trial court maxed him out at 240 months.  After a while, Mr. Vickla filed a post conviction petition to complain about the sentence.  He got no relief but the court of appeals sent the case back for resentencing, saying that the trial court abused its discretion.  The supreme court reversed the court of appeals.

The presumptive guidelines sentence was 33 months, so the sentence imposed was just shy of eight times the presumptive sentence.  Mr. Vickla has eleven prior felony convictions but nine of them had decayed.  The supreme court seemingly declines the state’s suggestion that trial courts have unfettered discretion to sentence under 609.1095.  Instead, the court looks to 244.11, subd. 2(b), which says that an appellate court may review a sentence to determine whether it is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court.”  It concludes that the sentence is not contrary to this statute.

An appellate court may consider comparable sentences in other departure cases to determine if the sentence under review is unjustifiably disparate, but to be “comparable” the sentence compared must be based upon the same or similar reasons.  Two of the three cases that the court of appeals looked at in reversing Mr. Vickla’s sentence did not involve career offenders and were thus not “comparable”.  The third case was a career offender case, with the sentence at the maximum sentence; that was good enough for the supreme court.  To seal the deal the court dropped in a footnote to list previous cases which had upheld a statutory maximum sentence for a career offender.  What the court is telling trial courts, without saying it is that if the statutory requirements under 609.j1095, subd. 4, the trial court does, indeed, have unfettered discretion to max out the defendant.

Once a Sentence Expires, The Court Has No Jurisdiction Either to Amend or Modify It.

State v. Hannam, Minn.Ct.App., 1/18/2010.  Back in 2006 the state charged Mr. Hannam with four counts of ineligible person on possession of a firearm.  Upon conviction, he got four concurrent sixty month sentences.  On the first appeal, the appellate court said that all four convictions arose out of the same behavioral incident so it threw out three of the four convictions and remanded for resentencing.

The trial court resentenced Mr. Hannam to twenty-seven months, rejecting the state’s argument that the correct sentence was the mandatory minimum sixty months.  That sentence expired during the ninety days that the state had to file a notice of appeal.

The problem was, however, the state did not file its notice of appeal until until after expiration of the sentence.  Once the sentence expired, the appellate court lost jurisdiction either to amend or modify the sentence, even an improper one.  A sentence expires once a defendant completes the terms of imprisonment and supervised release.  See State ex rel. Peterson v. Fabian, 784 N.W.2d 843, 846 (Minn. App. 2010).  The expiration of sentence bars any further sanctions for that conviction.  State v. Whitfield, 483 N.W.2d 102, 104 (Minn. App. 1992).

Court Rejects Various Post Conviction Claims as Knaffla Barred.

State v. Reed, Minn.S.Ct., 12/29/2010.  A jury convicted Mr. Reed of conspiracy and aiding and abetting the murder of a police officer.  The Minnesota Supreme Court upheld his confictions.  State v. Reed, 737 N.W.2d 572 (Minn. 2007).  Mr. Reed then filed a post conviction petition, asserting various claims.  Among them:  the trial court violated his constitutional right of self-representation; the statute of limitations barred his prosecution; and both trial and appellate counsel provided ineffective assistance of counsel.

Officer Sackett responded to a false emergency call, during which he was shot and killed.  Mr. Reed was accused of being the person who directed Constance Trimble-Smith to make the false emergency call, and accused of shooting the officer.  Shortly before trial, Mr. Reed asked the trial court to appoint new counsel.  The trial court denied that request.  Mr. Reed pursued this denial on direct appeal.  The supreme court assumed, without deciding, that Mr. Reed had asked to represent himself; it did so because in its view Mr. Reed had waived this issue by not presenting it on direct appeal.  State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737(1976). 

Mr. Reed also argued that a three year limitations period controlled prosecution for conspiracy and aiding and abetting murder.  He further argued that a valid limitations defense deprives the trial court of subject matter jurisdiction and thus cannot be waived or barred under Knaffla.  The supreme court rejects this claim.  The court says that a limitations statute is a “claim-processing rule” that can be waived.  Because Mr. Reed knew of the limitations defense on direct appeal but did not raise it, he is barred from raising it now.

The court also rejects the ineffectiveness of counsel arguments and rejects a claim that additional affidavits supported a recantation of evidence such that there should have been at least an evidentiary hearing on the claim.

A Defendant Who is Charged Under the Mandatory Sentencing Provision of Chapter 152 Is Not Eligible For Probation.

State v. Adams, Minn.Ct.App., 12/28/2010.  Ms. Adams pled guilty to second degree controlled substance crime, charged under the subsequent offender sentencing provision, Minn.Stat. 152.022, subd. 3(b).  This sentencing provision calls for a mandatory sentence of three years.  The trial court ignored this sentencing provision and placed Ms. Adams on probation, citing eight separate reasons for departing.  The State appealed the sentence and the court of appeals reversed.

Minn.Stat. 152.026 says that someone who is “convicted and sentenced to a mandatory sentence under [the second degree controlled substance statute] is not eligible for probation … under that person has served the full term of imprisonment as provided by law.”  See State v. Turck, 728 N.W.2d 544 (Minn.Ct.App. 2007).  The appellate courts have decided to construe this “convicted and sentenced” language to actually say “has a prior drug conviction and thus could be charged under the mandatory sentencing provision.”  Absent legislative action, someone who is charged under the subsequent offender sentencing provision is unable to avoid the mandatory prison sentence.  Now, whether the trial court can impose only the mandatory sentence, which in this case would be a guidelines departure, remains an open question.

Shockingly, Ms. Adams was not represented on this appeal.  She had private counsel in the trial court who only let the court of appeals know that he was not representing Ms. Adams after the state had filed its brief.

A Defendant's In Court Explanation For Rejecting A Plea Offer Is Not Admissible Under Rule 410.

State v. Brown, Minn.S.Ct., 1/5/2011.  I wrote about the court of appeals opinion here.  The State charged Mr. Brown with attempted second degree murder, and with possession of a pistol without a permit.  The state offered a plea to the attempt, with a recommended sentence of 130 months.  At the pretrial, in the midst of making a record of this offer, Mr. Brown engaged in a spirited colloquy with the trial court, after which he entered a plea of not guilty.  Among other statements, Mr. Brown asserted a defense of self defense and defense of others, and claimed that he had a permit for the pistol.

At trial, Mr. Brown testified, again asserting his claims of self defense and defense of others.  He also testified that he did not have a permit for the gun.  The prosecutor was all over this, asking if it wasn't true that Mr. Brown had previously told the court that he did have a permit.  After the trial court over ruled the objection to the question, Mr. Brown stated that he did recall saying that.  The defense thought that Mr. Brown's statements during the discussion of the plea offer were excluded from evidence under Rule 410, which states in pertinent part:

Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil, criminal, or administrative action, case, or proceeding whether offered for or against the person who made the plea or offer.

The Court of Appeals agreed with the trial court's ruling.  It pointed out that Mr. Brown neither pled guilty nor offered to do so.  In fact, he mostly complained that he should not have been charged with the attempt because his actions were justified, and then he lied about having a gun permit. 

The Supreme Court reversed the court of appeals.  It did so under a plain error analysis, because defense counsel did not specify the specific ground for the objection.  The court acknowledged that from the context of the examination there were any of three possible objections, one of which invoked Rule 410 but the court was unwilling to select that or the other two possible grounds.

Even so, it was plain error to have admitted the testimony.  Mr. Brown never offered to plead guilty, but he did make statements “in connection with” a plea offer, in this case the state’s sentencing recommendation.  The court is willing to say that this fits within the language of the rule, especially when the statements came about during an exchange that the trial court initiated.  This plain error is also prejudicial.  This is because of the importance of Mr. Brown’s credibility on the claim of self defense and defense of others.  Finally, the plain error also seriously affected the fairness, integrity or public reputation of judicial proceedings.  Mr. Brown gets a new trial on the attempted second degree murder.

Gas Headspace Chromatography Test Meets Frye-Mack; Results of Urine Test Are Admissible

State v. Edstrom, Minn.Ct.App., 12/21/2010.  A Carver County Deputy arrested Ms. Edstrom for driving while impaired; she consented to a urine test, which she provided.  She did not first void her bladder before providing the test sample.  The BCA ran the sample through something called a “gas headspace chromatography,” which said that the alcohol concentration from the sample was 0.08.

Ms. Edstrom asked for a Frye-Mack hearing to evaluate gas headspace chromatography.  The state objected but the trial court held one anyway.  Although the court of appeals has issued several opinions that upheld either the admission or exclusion of “first-void urine” tests, neither that court nor the supreme court had evaluated such evidence under Frye-Mack.  Now it has.

So, just what is this contraption?  Here’s how the appellate court describes it:

Gas headspace chromatography involves the isolation of compounds contained in a urine sample and the measurement of the concentration of each compound. The urine sample is placed in a vial and diluted with a liquid solution. Then, the vial is heated until the urine sample equilibrates, meaning that the gas and liquid forms of the compounds in the liquid solution reach a constant ratio. Next, the vapor is transferred to a gas chromatography column. The vapor travels through the column, and as it does so, the compounds in the vapor separate from each other and attach to the column. A detector identifies each of the compounds and measures the quantity of the compounds in the urine sample.

The appellate court concluded that gas headspace chromatography is generally accepted in the scientific community whether testing “first-void” or “later-void” samples.  The court also rejects various defense expert contentions about the test’s reliability.  So, the test passes the Frye-Mack requirements.

Which is what the trial court had actually ruled, notwithstanding which the court then suppressed the evidence.  The trial court said that the test result was but one factor to be considered in determining impairment but is not, itself, evidence of impairment.  The trial court feared, however, that a jury would reach just that conclusion, that the test result meant that Ms. Edstrom was impaired, no matter what evidence she submitted.  The prejudicial effect of admitting the tests result thus outweighed its probative value.

Not so fast.  Relevant evidence, which the test result is, is not excludable unless it poses a risk of unfair prejudice.  Rule 403 says that relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury…”  That’s not the case here for three reasons:  a defense expert, an instruction to the jury, or defense closing argument.  The test result is in.

DUI Statute Does Not Require a Verbal Refusal; Circumstantial Evidence Can Support a Finding of Refusal.

State v. Ferrier, Minn.Ct.App., 12/21/2010.  An Eagan police sergeant arrested Ms. Ferrier for driving while impaired.  The sergeant administered a preliminary breath test which showed that Ms. Ferrier had an alcohol concentration of .184.  Back at the station, Ms. Ferrier agreed to take a urine test.  Over the next four hours Ms. Ferrier gulped as many as fifteen glasses of water but she still couldn’t pee in the cup.  The sergeant called it a night and charged Ms. Ferrier with test refusal.

So, did Ms. Ferrier “refuse to submit to a chemical test” within the meaning of Minn.Stat. 169A.20, subd. 2?  This turns out to be a question of law and not of urology anxiety.  Ms. Ferrier said that she was “willing but unable” to perform and that under those circumstances only a verbal refusal from her amounted to “refuse to submit to a chemical test.”  The appellate court says, no, there is no such requirement in the statute or in prior opinions.  Circumstantial evidence may suffice.

What’s a “refusal”?  It is, at least, “any indication of actual unwillingness to participate in the testing process, as determined from the driver’s words and actions in light of the totality of the circumstances.”  Ms. Ferrier chose a urine test over a blood test, which the appellate court said “presupposed her ability to provide a sample.”  The officers gave her all that water; they apparently cracked jokes with her in an effort to “lighten the mood so that [Ms. Ferrier] would not be impeded by nervousness.”  The officers warned her on the last trip to the potty that if the cup remained dry it would be scored as a refusal.  Ms. Ferrier never said that she was physically incapable of urinating and she never asked for the needle.