Whether Determination of Alcohol Concentration by First Void Urine Testing Correlates with Alcohol Concentration by Blood Testing is Irrelevant Under Evidence Rule 401

State v. Tanksley, Jr., Minn.S.Ct., 2\8\2012.  The state charged Mr. Tanksley with fourth degree driving while impaired, alcohol concentration of 0.08 or more.  The state based this charge on a first void urine test, the results of which satisfied the statutory requisite grams of alcohol per 67 milliliters of urine.  Mr. Tanksley wanted a Frye-Mack hearing to resolve his claim that first void urine testing does not reliably correlate with a driver’s blood alcohol concentration. 

The court of appeals had already answered this question –admitting the results of alcohol concentration determined by first void urine testing - in State v. Edstrom, 792 N.W.2d 105 (Minn.Ct.App. 2010).  Justice Stras, however, goes completely around Edstrom by pointing out that the statute creates three methods for proving the requisite alcohol concentration:

“alcohol concentration” can be proven by the number of grams of alcohol in 100 milliliters of blood, in 210 liters of breath, or in 67 milliliters of urine. Minn. Stat. § 169A.03, subd. 2.

Even assuming that the correlation between determining alcohol concentration by  first void urine testing and determining alcohol concentration by blood testing were weak, such evidence would have no effect on the determination whether the state proved that Mr. Tanksley’s urine alcohol concentration was at or above 0.08 grams per 67 milliliters of urine.  In other words, the presence or absence of a correlation is irrelevant.  Minn.R.Evid. 401.

Having resolved the case by resort to the rule of relevance, the court avoids deciding whether first void urine testing is a novel scientific technique.

Gross Misdemeanor or Felony Violation of Harassment Restraining Order Requires Proof that Defendant Knowingly violated the Order

State v. Gunderson, Minn.Ct.App., 2/6/2012.  Mr. Gunderson’s mom, who lived on a ten acre spread, got a harassment restraining order against her son; it seems he drank a bit too much and then came around hounding her for money, somewhat offensively one supposes.  Among other restrictions, the HRO forbid Mr. Gunderson from coming around where his mother lived.

Now, Mr. Gunderson owned a shed located on Mom’s parcel where he kept his things.  One day, when mom wasn’t around, a witness saw Mr. Gunderson near the shed and in the detached garage to mom’s house.  The state charged him with gross misdemeanor and felony violations of the HRO.  Mr. Gunderson testified that he believed that the HRO only prevented him from contacting his mother and from entering her residence, but not from being on other parts of the ten acre spread when she wasn’t around. 

On both offenses, in addition to instructing the jury that there had to be an existing restraining order forbidding Mr. Gunderson from harassing his mother, the trial court also instructed the jury that Mr. Gunderson had to know of the order and to have violated it.  This instruction would have been okay had the offense been a misdemeanor but not for either a gross misdemeanor or felony.  This is because the statutory requirements are different:

(a) A person who violates a restraining order issued under this section is subject to the penalties provided in paragraphs (b) to (d).

(b) Except as otherwise provided in paragraphs (c) and (d), when a temporary restraining order or a restraining order is granted under this section and the respondent knows of the order, violation of the order is a misdemeanor.

(c) A person is guilty of a gross misdemeanor who knowingly violates the order within ten years of a previous qualified domestic violence-related offense conviction or adjudication of delinquency.

(d) A person is guilty of a felony and may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if the person knowingly violates the order:

(1) within ten years of the first of two or more previous qualified domestic violence-related offense convictions . . . .

Minn.Stat. 609.748, subd. 6 [emphasis in original].  The trial court’s instructions were thus error, and were also plain, affecting Mr. Gunderson’s substantial rights.  (The instructions were error even though they complied with the model jury instructions, CRIMJIG 13.62–.63 (2006).)

Mr. Gunderson only disputed whether he knew that the restraining order prohibited him from coming on the property; he maintained that he thought the order only prohibited him from coming inside his mom’s residence and from having contact with her.  The appellate court concluded that a properly instructed jury, accepting this explanation, could have acquitted him.  He gets a new trial.

Mr. Gunderson represented himself at trial.  His request for appointment of a public defender to act as advisory counsel was denied, on the basis of Minn.Stat. 611.17(b)(4), which prohibits such appointments.  Relying on State v. Clark, 722 N.W.2d 460, 466 (Minn. 2006), the court of appeals says that the district court has the authority to appoint a public defender as advisory counsel, so denial of such a request has to be based on something else. 

A Stipulated Facts Trial Has to be Based on, Well, on Stipulated Facts, Mostly

State v. Dereje, Minn.Ct.App., 4/2/12.  I keep having to write about stipulated facts trials.  See here, and here, and here.  In this iteration of this conundrum, the parties tried to “stipulate” to facts on which the parties didn’t entirely agree.

The state charged Mr. Dereje with fifth degree criminal sexual conduct.  Mr. Dereje denied committing the offense.  For a while, Mr. Dereje was not competent to stand trial, but eventually he was restored to competency.

Mr. Dereje then agreed to submit the Complaint and the police reports, which contained both the victim’s account of the sexual assault and Mr. Dereje’s denial of it, to the court for a stipulated facts trial under Rule 26.01, subd. 3.  In doing so, Mr. Dereje agreed in writing to waive his right to a jury trial, to testify, to compel witnesses to testify, and to confront the prosecutor’s witnesses.  The trial court duly found Mr. Dereje guilty.

What Mr. Dereje did not do, however, was agree to submit a “body of evidence” to the trial court for it to sort out, including resolving disputed facts.  This was error of some sort, but subject to plain error analysis.  It was, the appellate court said, like the receipt of evidence that should properly have been excluded.  It was plain error, but it did not affect Mr. Dereje’s substantial rights.  Although Mr. Dereje didn’t agree to submit this “body of evidence” he could have done so, which would result in turning the whole mess into a court trial instead of a stipulated facts trial.

But, we’re not done.  The court goes on to hold that Mr. Dereje’s trial counsel was ineffective.  How so? 

Here, there was a complete failure of meaningful adversarial testing:  trial counsel made no attempt to draw the court’s attention to the disputed factual evidence in a case that hinged on credibility.

Counsel believed, in apparent good faith, that he was engineering a stipulated facts trial when it turned out he was doing (a bad job) of conducting a court trial.  For this unwitting mistake, the appellate court deems counsel’s performance ineffective.  And,  the resulting error was a “structural,” one that requires reversal of the conviction.  Cf, State v. Dalbec, 800 N.W.2d 624 (Minn. 2011.)  (Failure of defense counsel to give written closing argument in court trial not structural error.)

Then there’s this rather ominous footnote 2:

While we do not base our decision on appellant’s assertion that the resolution of this case was nothing more than a poorly handled guilty plea, we reiterate that a stipulated evidence trial in which a disposition and sentence is suggested before the matter is submitted, as in this case, has the appearance of a negotiated plea rather than a proper trial.

Shades of Missouri v. Frye, ___ U.S. ___ (2012)

Assault, Bodily Harm, Is a General Intent Crime for which Voluntary Intoxication is not a Defense

State v. Fleck, Minn.S.Ct., 2/15/2012.  This comes up from the court of appeals, which had held that assault, bodily harm, was a specific intent crime for which voluntary intoxication was a defense.  See here.  The supreme court now reverses the court of appeals, holding, despite some sloppy language in earlier opinions, that assault, bodily harm, is not a specific intent crime.  As a general intent crime, voluntary intoxication is not a cognizable defense.

Supreme Court Upholds Collection of DNA Exemplar for Adult Convicted of Gross Misdemeanor Arising out of Felony-Charged Conduct

State v. Johnson, Jr., Minn.S.Ct., 1/25/2012.  This is the companion case, for grown-ups, to the juvenile case, In the Matter of the Welfare of:  M.L.M., on the collection of DNA from a defendant originally charged with a felony but who pleads down to a misdemeanor.  The court of appeals had upheld this practice.  See here.  The supreme court upholds this practice as well in a cut and paste opinion from the juvenile opinion. 

Supreme Court Upholds Collection of DNA Exemplar for Juvenile Adjudicated of Gross Misdemeanor

In the Matter of the Welfare of:  M.L.M., Minn.S.Ct., 1/25/2012.  The state alleged that in 2008 M.L.M. and another juvenile used scissors to remove security sensors from un-purchased merchandise and then stole that merchandise.  Possession and use of the scissors is a felony but the theft, because of the value of the merchandise, was only a gross misdemeanor.  M.L.M. entered a guilty plea to the gross misdemeanor in exchange for dismissal of all other charges.  The juvenile court ordered M.L.M. to provide a DNA exemplar.

M.L.M. challenged the DNA requirement as an unreasonable search and seizure, and as a denial of equal protection.  Both the trial court and the court of appeals rejected these challenges.  The supreme court, three justices dissenting, uphold the lower courts. Here’s the opening paragraph of Justice Meyer’s dissent:

I respectfully dissent. M.L.M. was adjudicated delinquent for the purpose of rehabilitation. It is a disposition at the other end of the harmlessness scale from a sentence for a felony conviction. The collection and retention of the biological specimen for DNA implicate strong privacy interests apart from those intruded upon by the collection of the specimen, amount to full-scale personal DNA searches because of the potential for exposure of exceptionally private information contained in the DNA, and operate as a permanent burden on privacy. I would conclude that the State’s interest in taking a biological specimen from a juvenile adjudicated as delinquent, without probable cause, does not outweigh the juvenile’s privacy interest. I would hold that the DNA collection statute is unconstitutional as applied to a juvenile adjudicated to be delinquent for a gross misdemeanor.

Admission of a Recording of Non-Testifying Co-conspirator Does Not Violate the Confrontation Clause

State v. Brist, Minn.S.Ct., 2/22/2012.  A confidential informant made five separate controlled buys of methamphetamine from Ms. Brist’s boyfriend, Mr. Garcia.  The state charged Ms. Brist with aiding and abetting and conspiracy to commit controlled substances crimes.  Over objection, the state introduced an audio recording of a conversation between Mr. Garcia and the CI during one of the controlled buys.  The district court admitted this recording on the theory that Mr. Garcia made the statements in the course of and in furtherance of a conspiracy between Ms. Brist and Mr. Garcia.  Ms. Brist complained that admission of the recording violated her confrontation rights.

The court of appeals had rejected this argument earlier.  See here.  The supreme court also rejects this argument, relying on Bourjaily v. United States, 483 U.S. 171 (1987).  Ms. Crawford v. Washington, 541 U.S. 36 (2004) overruled Bourjaily.  The Minnesota supreme court acknowledges that Crawford has cast doubt on Bourjaily’s reasoning, but concludes that only the U.S. Supreme Court can overrule Bourjaily. 

Chief Justice Gildea and Justice Meyer would have affirmed the conviction by utilizing a Crawford analysis to conclude that the recording was not “testimonial.”

Possession or Use of a False Identification Card Does Not Support Aggravated Forgery Conviction.

State v. Reynua, Minn.Ct.App., 12/5/2011, petition for further review GRANTED, 2/28/2012.  Ms. Reynua possessed and used a Minnesota identification card with another person’s name as proof of identification when Hormel hired her, and to register two cars.  For this a district court judge found her guilty of aggravated forgery under Minn.Stat. 609.625, subd 1(1).  Ms. Reynua argued that because the identification card did not create any legal right or privilege her conduct in possessing it did not constitute aggravated forgery.  Here’s what the pertinent portion of the statute says:

Whoever, with intent to defraud, falsely makes or alters a writing or object of any of the following kinds . . . is guilty of aggravated forgery . . .:

(1) a writing or object whereby, when genuine, legal rights, privileges, or obligations are created, terminated, transferred, or evidenced, . . . .

The court of appeals agreed, concluding that the identification card is merely a document to establish identity.

The state also charged Ms.Reynua with five counts for her conduct involving a federal I-9 form, a federal form used to verify eligibility for employment based on citizenship or other legal status.  Ms. Reynua argued that federal law preempts any state prosecution for such conduct.  The court of appeals agrees with this argument but only in part.  A perjury prosecution for false statements on the I-9 form is preempted, but not so on a simple forgery charge based on the use of the Minnesota identification card.

Court of Appeals Rejects Second Amendment Challenge to Possession of Firearm by an Ineligible Person

State v. Craig, Minn.Ct.App., 12/5/11, petition for further review, GRANTED, 2/14/12.    Police responded to a domestic abuse call and learned that the alleged abuser had left in a maroon car.  Police eventually stopped a maroon car that Mr. Craig was driving.  Officers conducted an inventory search of the vehicle and found a gun.  Mr. Craig was not authorized to be in possession of a gun because of a prior drug conviction.  Following his conviction of possession of a firearm by an ineligible person, Mr. Craig raised these issues on appeal:

I. Does Minn. Stat. § 624.713, subd. 1(2), as applied to appellant, violate the Second Amendment to the United States Constitution?

II. Did the district court err in denying appellant’s motion to suppress the firearm as the product of an illegal search of the vehicle?

III. Did the district court commit reversible error by accepting appellant’s stipulation to an element of the charged offense without obtaining a proper waiver of appellant’s right to a jury determination of that element?

IV. Did the district court abuse its discretion by admitting evidence of appellant’s prior felony controlled substance conviction for impeachment purposes?

V. Did the district court abuse its discretion by denying appellant’s request to challenge the credibility of hearsay statements that were made to the police by an unavailable witness?

VI. Did the district court err by requiring appellant to make a copayment for the public defender without first determining his ability to pay?

The gun possession by an ineligible person statute establishes a life time prohibition; Mr. Craig argued that this violated the Second Amendment to the U.S. Constitution.  District of Columbia v. Heller, 554 U.S. 570, 595, 128 S. Ct. 2783, 2799 (2008).   Mr. Craig argued that this statute cannot survive strict-scrutiny analysis.  The court of appeals, however, elects for an intermediate level of scrutiny which looks to see if the statute is “substantially related to an an important governmental objective.”  Clark v. Jeter, 686 U.S. 456, 461, 108 S. Ct. 1910, 1914 (1988).  Under this analysis, the court of appeals rejects Mr. Craig’s Second Amendment challenge.

The Minnesota Supreme Court has accepted review of this issue.

Statutory Reorganization Does Not Preclude First Degree DWI Conviction

State v. Retzlaff, Minn.Ct.App., 11/21/2011, petition for further review GRANTED.  In August 2009, a deputy stopped a car driven by Mr. Retzlaff after observing the car twice cross the center line.  The deputy arrested Mr. Retzlaff for driving while impaired; his breath sample produced an alcohol concentration of 0.19.  The state charged Mr. Retzlaff with first degree driving while impaired because Mr. Retzlaff had a 2000 conviction for criminal vehicular operation. 

Mr. Retzlaff did not dispute that he was operating a car while under the influence of alcohol.  Rather, he zeroed in on the second requirement of a first degree DWI charge, that he “ha[d] previously been convicted of a felony under section 609.21, subdivision 1, clause (2), (3), (4), (5), or (6).”  Minn.Stat. 169A.20, subd. 1(3) (2008).  Let’s get the complete DWI provision out and highlight the pertinent part:

A person who violates section 169A.20 (driving while impaired) is guilty of first-degree driving while impaired if the person: (1) commits the violation within ten years of the first of three or more qualified prior impaired driving incidents; (2) has previously been convicted of a felony under this section; or (3) has previously been convicted of a felony under section 609.21, subdivision 1, clause (2), (3), (4), (5), or (6).

Minn. Stat. § 169A.24, subd. 1.  Now, back in the day, at the time of Mr. Retzlaff’s conviction, criminal vehicular operation was codified at 609.21, subd. 2a;  today’s 169A.20’s list of predicate felony offenses does not mention subdivision 2a, because the legislature reshuffled a bunch of the statute numbers.  The court of appeals passes this off as nothing more than a “numeric irregularity,” rather like too many slices of pizza.  To follow what the court concedes is the statute’s plain language leads to what it characterizes as an “absurd result that contradicts the statute’s obvious intent.”  The court upholds the conviction and sentence.

Farmers Can Hunt Deer With the Aid of Spoiled Pumpkins

State v. Hansen, Minn.Ct.App., 11/21/2011.  Mr. Hansen is a farmer.  Among other crops he grows pumpkins, which he sells around Halloween time.  When the goblins retire to await the following year’s festivities he plows the unsold pumpkins – when he gets around to is – back into the soil as “green manure”.  On opening day for hunting deer, Mr. Hansen erected a hunting blind on his farm not far from a pile of pumpkins and other discarded vegetable residue.  The Department of Natural Resources thought that this was hunting deer with the aid of bait, which just happens to be a petty misdemeanor.

The DNR did a “fly-over” of Mr. Hansen’s farm about two weeks before the deer opener; they didn’t see any pumpkins piled up.  The flew another mission two days before opener and lo and behold there were the pumpkins piled up on the field along with corn and other residue.  They decided that this had nothing to do with farming and everything to do with venison.

Well, you got to read this baiting statute:

97B.328 BAITING PROHIBITED.

Subdivision 1.Hunting with aid of bait or feed prohibited.

A person may not hunt deer:

(1) with the aid or use of bait or feed; or

(2) in the vicinity of bait or feed if the person knows or has reason to know that bait or feed is present.

Subd. 2.Removal of bait.

An area is considered baited for ten days after the complete removal of all bait or feed.

Subd. 3.Definition.

For purposes of this section, "bait or feed" includes grains, fruits, vegetables, nuts, hay, or other food that is capable of attracting or enticing deer and that has been placed by a person. Liquid scents, salt, and minerals are not bait or feed. Food that has not been placed by a person and resulting from normal or accepted farming, forest management, wildlife food plantings, orchard management, or other similar land management activities is not bait or feed.

The court of appeals thinks that farmers should be able to hunt deer on their own property so they squirm around to conclude that this statute is ambiguous.  They conclude that the statute can’t distinguish between innocent conduct related to farming – moving all of your spoiled pumpkins into one big pile – and unlawful baiting of deer – moving all of your spoiled pumpkins into once big pile.  Mr. Hansen’s conviction is reversed.

Petition to Withdraw Guilty Plea Not Knaffla Barred but Nonetheless Without Merit

Barnslater v. State, Minn.Ct.App., 11/21/2011.  A defendant pleads guilty, but gets a stayed sentence.  Later, he violates probation and the trial court executes that sentence.  That same defendant starts an appeal of the probation revocation decision but then abandons that appeal.  Time goes by (but not too much of it).  Defendant files a post conviction petition that seeks to set aside the guilty plea.  The post conviction court says, not so fast.  You started an appeal once but gave it up.  No redo’s!

That’s pretty much all there is to this case.  The court of appeals corrects the post conviction court’s conclusion that Mr. Barnslater had had his chance to challenge the guilty plea during his abandoned appeal of the probation revocation decision.  Mr. Barnslater specifically stated in his notice of appeal from the probation revocation decision that he was only appealing from that decision.  So, it was not a “direct appeal” from his original conviction and not barred under the Knaffla “use it or lose it” rule.

Even so, Mr. Barnslater was not entitled to withdraw his guilty plea.

In Criminal Vehicular Operation Prosecution, Exclusion of Evidence of Victim’s Alcohol Consumption and Erroneous Instruction on Causation Requires New Trial

State v. Nelson, Minn.Ct.App., 11/21/2011, petition for further review denied, 2/14/2012.  Mr. Nelson’s Chevy Silverado pickup truck struck Christopher Carlson’s Honda all-terrain vehicle, killing Mr. Carlson.  Both men had been drinking – Mr. Nelson’s BAC was .056, and Mr. Carlson’s BAC was .15 - and both were driving rather wildly; the state’s accident reconstruction expert concluded that Mr. Nelson’s speed was 81 m.p.h. one second before impact while the defense expert concluded that the speed was between 61 and 70 m.p.h. at impact.  What happened was, Mr.  Nelson topped a rise in the road and then drove the length of a football field in a ditch.  Amazingly, he came upon Mr. Carlson’s Honda ATV – which went into the ditch a mere fifty feet before impact and was likely traveling without lights - in the same ditch, colliding with the rear of the Honda ATV.  Here’ what happened next:

After the collision, [Mr. Nelson’s] pickup traversed County Road 1 to the ditch on the [opposite] side of the road, vaulted into the air after striking a field approach, and came to rest between 600-700 feet from the impact point of the collision.

The trial court granted the state’s pretrial motion to exclude evidence of Mr. Carlson’s level of intoxication.  Mr. Nelson had argued that this evidence was relevant to the issue of causation.  The definition of “causation” in a criminal vehicular operation case derives from the civil substantial factor definition of causation, and is commonly used in criminal vehicular homicide and operation cases.  State v. Dunagan, 521 N.W.2d 355 (Minn. 1994).  Here’s the definition:

For a party’s negligence to be the proximate cause of an injury, the act must be one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others. There must also be a showing that the defendant’s conduct was a substantial factor in bringing about the injury.

Complicating things for Mr. Nelson is the alleged negligence of Mr. Carlson.  On these facts, where Mr. Carlson’s negligence is “interweaved” with that of Mr. Nelson, it was unfair and thus an abuse of discretion to exclude evidence of Mr. Carlson’s alcohol consumption.  This error was not harmless, especially in combination with the instruction error that also occurred.

That error was the trial court’s failure to instruct the jury properly on causation.  The trial court told the jury that an element of the vehicular operation counts was that Mr. Nelson “caused the death of [Mr. Carlson], but declined the defense request to instruct the jury additionally that “A ‘direct cause’ is a cause that had a substantial part in bringing about the accident.” Excluding this additional instruction again misinformed the jury on what law to apply to determine whether Mr. Nelson’s actions were a “substantial factor in bringing about the injury.”  This error was also not harmless.  Mr. Nelson gets a new trial. 

The State’s Circumstantial Evidence Sufficiently Proved Premeditated Murder

State v. Palmer, Minn.S.Ct., 9/28/2011.  The trial court, sitting without a jury, found Mr. Palmer guilty of premeditated first degree murder, second degree intentional murder, and possession of a firearm by an ineligible person in the shooting death of Ernest Moss.  The court sentenced Mr. Palmer to life without possibility of release on the premeditated murder conviction.

Mr. Palmer’s brother, Da’Leino, fronted some crack cocaine to Mr. Moss, who promised to pay for the drugs within the week.  Da’Leino, meanwhile, owed money to his supplier.  Mr. Moss didn’t pay; Da’Leino got agitated. After a few days  Da’Leino and Mr. Palmer went over to Mr. Moss’s place and waited for him.  When Mr. Moss showed up the three argued.  When Mr. Moss threatened to call the police, Da’Leino pulled out a gun and pointed it at Mr. Moss.  Mr. Palmer then grabbed the gun from Da’Leino and shot Mr. Moss five times, firing two to three shots, pausing a couple of seconds, then firing the remaining shots.

On appeal, Mr. Palmer’s attorney argued that the evidence was not sufficient to support premeditated murder.  The supreme court underwent its Anderson circumstantial evidence routine, described thusly:

First, we must identify the circumstances proved, giving deference “to the jury’s acceptance of the proof of these circumstances and rejection of evidence in the record that conflicted with the circumstances proved by the State.” Second, we independently examine “the reasonableness of all inferences that might be drawn from the circumstances proved,” including inferences consistent with a hypothesis other than guilt.

State v. Anderson, 789 N.W.2d 227, 241-42 (Minn. 2010) (quoting State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010)).  For the evidence to be sufficient to convict of first-degree premeditated murder, a defendant must have formed the intent to kill, and then must have had “some appreciable time” in order to “consider, plan or prepare for, or determine to commit” the killing. Minn. Stat. § 609.18; State v. Moore, 481 N.W.2d 355, 361 (Minn. 1992).  The court found sufficient proof of premeditation by examining evidence of planning, motive and the “nature of the killing.”  The court then examined whether the circumstances that the state proved supported a reasonable inference other than guilt.  The court rejected Mr. Palmer’s assertion that the shooting was but a “rash impulse” rather than premeditated.  The evidence thus supported the premeditated murder conviction.  Justices Meyer, Page and Paul Anderson dissented from this conclusion.

The court rejected, on plain error analysis, Mr. Palmer’s pro se argument that the evidence more closely fit manslaughter offenses.  The court also rejected a couple other pro se arguments.

Jail Credits Denied, For Now, on Purported (But Not Really a) Consecutive Sentence.

State v. Clarkin, Minn.Ct.App., 10/3/2011, petition for further review, GRANTED, 12/21/12.  This is a jail credits appeal.  Mr. Clarkin did time in prison for a second degree assault conviction.  After his release he failed to comply with various of his parole conditions so in May 2008 a warrant issued for his arrest.  Authorities arrested him on the warrant on July 13, 2008.  Between May and July, Mr. Clarkin also allegedly spray painted graffiti on the outside of the homes of the assault victim and her father.  Mr. Clarkin denied the spray painting allegations; he was not charged but he did return to prison.

When he got out this second time, there were, curiously, eleven more similar graffiti incidents.  Police investigated and found an eye witness and a video of Mr. Clarkin spray painting.  The two groups of spray painting were the basis of a felony harassment/stalking charge, and a charge of violating an OFP.  Authorities arrested him in December, 2009.  Mr. Clarkin pleaded guilty to the harassment/stalking charge which was based on a July 5, 2008 graffiti incident.  He got a thirty-five month sentence, against which he received jail credits only from the December 2009 arrest.  By the time the trial court sentenced him, however, his assault conviction expired.

Mr. Clarkin thought he was entitled to jail credits back to July 13, 2008, arguing that authorities had probable cause to have charged him with the first two alleged graffiti incidents.  See State v. Fritzke, 521 N.W.2d 859 (Minn.Ct.App. 1994).  The trial court eventually held that the authorities did not have probable cause back in July 2008 and so Mr. Clarkin was not entitled to those jail credits.

The court of appeals saw this conundrum differently.  They could care less about probable cause.  Rather, they honed in on the Guidelines, which says that “Consecutive sentences are presumptive when the conviction is for a crime committed by . . . an offender on supervised release . . . .” Minn. Sent. Guidelines II.F.1 (2010).”  (Now, Mr. Clarkin had pointed out – something that the court of appeals not once mentions – that his assault conviction had expired so that this new sentence could be neither consecutive nor concurrent to that expired one.) The court of appeals said that because Mr. Clarkin was on supervised release when he engaged in the offense conduct (at least of conviction) – the July 8 spray painting – giving him jail credits while he was also serving (again) his assault sentence would be a de facto departure from the Guidelines.  He doesn’t get those jail credits.

The Supreme Court has granted further review.

Denial of a defendant’s motion to dismiss an indictment for first-degree murder for lack of subject matter jurisdiction is immediately appealable as of right.

State v. Ali, Minn.S.Ct. 10/12/2011.  The state charged Mr. Ali with the three shooting deaths at the Seward Market in Minneapolis.  The indictment alleged that Mr. Ali was seventeen years old on the date of the alleged offenses and thus automatically subject to trial in the district court.  Mr. Ali moved to dismiss for lack of subject matter jurisdiction based on his claim that he was only fifteen years old on the date of the alleged offenses.  The trial court denied his motion and the court of appeals concluded that this denial was not an appealable order.

The supreme court reversed the court of appeals.  The court held that the denial order was an appealable order and that the state had the burden of proof to establish Mr.Ali’s age by a preponderance of the evidence.

Rule 28.02, subdivision 2(2) has a laundry list of orders from which a defendant may immediately appeal as of right.  The order denying Mr. Ali’s motion to dismiss the indictment is not on that list.  Nonetheless, borrowing from the civil side, the supreme court says that an order denying a motion to dismiss for lack of jurisdiction is immediately appealable as of right.  Establishing Mr. Ali’s age on the date of the alleged offenses does finally determine a claim – Mr. Ali’s right to be tried in juvenile court – that is separate from his guilt of innocence and is thus appealable as a matter of right.

The court also adopts a preponderance of the evidence standard of proof, rejecting Mr. Ali’s claim that the standard should be beyond a reasonable doubt. 

No Extension of Padilla to Risk of Loss of eligibility to Posses Firearm Following Conviction

Sames v. State, Minn.Ct.App., 10/17/2011.  Mr. Sames pled guilty to misdemeanor domestic assault.  After sentencing, he moved to withdraw his plea, saying that his attorney was ineffective by not advising him that his plea would make him ineligible to possess a firearm.  He made this argument, of course, on the back of Padilla v. Kentucky, 130 S.Ct., 1473 (2010).

After sentencing, withdrawal of a guilty plea is only permitted to correct a “manifest injustice,” which exists if the plea is not accurate, voluntary and intelligent.  State v. Raleigh, 778 N.W.2d 90 (Minn. 2010).  Historically, the courts have said that a plea is still voluntary even when a defendant is unaware of what it characterizes as “collateral consequences.”  The risk of becoming ineligible to possess a firearm is such a “collateral consequence.”  State v. Rodriguez, 590 N.W. 2d 823 (Minn.Ct.App. 1999). 

Now the court of appeals was not unimpressed with the logic of extending Padilla to these facts.  Padilla acknowledged, after all, that the Supreme Court has never relied on this distinction to define the scope of a constitutionally protected right.  Loss of eligibility to posses a firearm is nearly as “intimately related to the criminal process” as is deportation, and is “nearly an automatic result” of a criminal conviction.  Even so, this is a timid panel and abjures going first.  The court can’t find a single case from any other jurisdiction that has agreed with the logical extension of Padilla that Sames urges. 

The Minnesota Supreme Court declined further review. 

Exclusion of Third Party Perpetrator Evidence Earns a New Trial; Concurrence Urges a New Look at Eye Witness Testimony

State v. Ferguson, Minn.S.Ct., 10/19/2011.  A jury convicted Mr. Ferguson of first degree premeditated murder of Irene Burks.  Mr. Burks raised eight separate issues on appeal but reversed on only one of them, a claim that the trial court had been wrong to exclude evidence of an alternative perpetrator.

Ms. Burks was standing outside a friend’s house,  “K.C.”, and K.C.’s daughter.  An African American man wearing a black hooded sweatshirt started running toward K.C.’s house; this man fired a gun six or more times in the general direction of K.C. and  Ms. Burks.  Ms. Burks later died at the hospital.  At the scene, K.C. further described the shooter as a black male, about five-nine, thin build, medium to dark complected.” K.C. said the shooter’s nose was “a little wider,” and he had “medium-sized lips.” She said the shooter was wearing a blue or black “hoodie.” Three witnesses saw an individual wearing a dark-colored hooded sweatshirt leaving the scene of the shooting.  K.C. later identified Mr. Ferguson during a six person sequential photographic lineup.

Mr. Ferguson asked the trial court to be allowed to introduce evidence that connected a Christopher Jennings, an acquaintance of Ms. Burks, to the shooting; the trial court denied this request.  Before getting to the factual basis for this claim, here’s a short summary of third party perpetrator evidence law:

All defendants accused of criminal behavior have the constitutional right to present a complete defense. State v. Larson, 787 N.W.2d 592, 597 (Minn. 2010) (citing State v. Atkinson, 774 N.W.2d 584, 589 (Minn. 2009)). Included within this right is “the right to present evidence showing that an alternative perpetrator committed the crime with which the defendant is charged.” Id. (internal quotation marks omitted). Such evidence is generally not admitted “for the purpose of establishing the alternative perpetrator’s guilt, but to create a reasonable doubt as to the defendant’s guilt.” Id. (internal quotation marks omitted). Courts may limit the defendant’s evidence to ensure that the defendant does not confuse or mislead the jury. State v. Hannon, 703 N.W.2d 498, 506 (Minn. 2005) (citing Taylor v. Illinois, 484 U.S. 400, 411 n.15 (1988).

Alternative perpetrator evidence is admissible only if the defendant makes a “threshold showing that the evidence the defendant seeks to admit has an ‘inherent tendency to connect the alternative perpetrator to the commission of the charged crime.’ ” State v. Nissalke, 801 N.W.2d 82, 99 (Minn. 2011) (quoting State v. Larson, 788 N.W.2d 25, 36-37 (Minn. 2010)). This foundational requirement “ ‘avoid[s] the use of bare suspicion, and safeguard[s] a third person from indiscriminate use of past differences with the deceased.’ ” Id. (quoting State v. Jenkins, 782 N.W.2d 211, 224 (Minn. 2010)).

Once the defendant lays foundation for the evidence by proving its inherent tendency to connect the alleged alternative perpetrator to the commission of the crime, “ ‘it is permissible to introduce evidence of a motive of the third person to commit the crime, threats by the third person, or other miscellaneous facts which would tend to prove the third person committed the act,’ in order to cast a reasonable doubt on the state’s case.” State v. Jones, 678 N.W.2d 1, 16 (Minn. 2004) (quoting State v. Hawkins, 260 N.W.2d 150, 159 (Minn. 1977)).

(Or not so short; anyway, the facts:)  Here’s what Mr. Ferguson sought to introduce in support of his third party perpetrator defense:  The police had got a tip that the person who had shot Ms. Burks was “C.,” (get it?).  C.J. was listed in her cell phone contacts and C.J. and Ms. Burks had spoken by phone three days before the shooting.  Jennings’ description was similar to that of the shooter provided by witnesses, and Jennings drove a car that matched some of the descriptions of a car seen at the scene of the shooting.  Jennings had been arrested for possession of a firearm without a permit some four months before the shooting and he was not in custody on the date of the shooting.  This evidence – in particular Jennings’ physical appearance and that of the car – suggest that Jennings was present at the scene of the shooting.  This evidence also connected Jennings both to Burks and to the crime.  As a result the exclusion of third party perpetrator evidence was an error, and it was not harmless beyond a reasonable doubt.

Justice Paul Anderson wrote a concurring opinion in which he addressed several of the other issues that Mr. Ferguson had raised on appeal.  One was the exclusion of expert testimony on the eye witness identification.  Justice Anderson pointed out that the police had not followed the “double blind” photo lineup protocol in the administration of the photo identification, and that the identification was a significant part of the state’s case.  The Justice lauds the recent New Jersey opinion, State v. Henderson, 2011 WL 3715028 (N.J. 8/24/2011), as destined “to become an important benchmark on the limitations of eyewitness identification”.  There’s plenty of good language here to support a request for introduction of such expert testimony.

Fleeing a Police Officer Can Serve as Predicate Offense under Second Degree Burglary Statute

Anderson v. State, Minn.Ct.App., 10/24/2011.  Employees at a Cub Foods believed that they saw a bunch of kids shoplifting and then jumping into a gold van driven by Ms. Anderson.  The local constabulary gave chase; Ms. Anderson eventually drove the van into a fortuitously open garage.  Everybody jumped out of the van, and closed the garage door.   The homeowner, who was upstairs changing her daughter’s diaper, upon hearing all this commotion in her house, came downstairs to find six strangers in the living room.

The state charged Ms. Anderson with second degree burglary, with fleeing a police officer in a motor vehicle as the predicate crime.  The district court found her guilty on stipulated facts; Ms. Anderson maintained that the fleeing didn’t count for purposes of the burglary statute.  She argued that the predicate crime had to be one against a person or property; and that the fleeing offense, like trespass, was complete upon her unauthorized entry into the garage.  The court of appeals rejects out of hand the first argument and then turned to the second one.  They reject that one as well.

Trespass, the court says, requires an unauthorized entry and is thus subsumed within the burglary statute that has the same requirement.  Here, Ms. Anderson was intent on eluding the police, something she thought she could accomplish by driving the van completely into the garage and then shutting the garage door.  Unlike football, where the touchdown occurs when the player breaks the plane of the end zone, fleeing requires that the player’s entire body be in the end zone.  Ms. Anderson did not complete the fleeing offense until she was able to close the garage door and thus the offense continued after the front of the van broke the plane of the garage and until the tail pipe did the same.

Car Owner Escapes Forfeiture For Now

Patino v. One 2007 Chevrolet, VIN  #1GNFC16017J255427, Texas License Plate # 578VYH, Minn.Ct.App., 10/31/2011, petition for further review granted.

In March of 2010, police stopped Ms. Patino’s significant other, Mr. Rosas, for erratic driving, only to discover that he did not have a license.  Mr. Rosas had a 2006 conviction for DWI.  In April 2010, police again stopped Mr. Rosas for suspected impaired driving; he had Ms. Patino’s ten year old daughter with him.  Mr. Rosas eventually pled guilty to third degree DWI (child endangerment).

The police served Ms. Patino, the owner of the 2007 Chevy, with notice of intent to seize and forfeit the car; she filed for a judicial determination.  After hearing, the district court said that even though Mr. Rosas was not convicted of an offense that would trigger forfeiture – second degree DWI, the state could nonetheless seize the car.

The forfeiture statute, Minn.Stat. 169A.63, says that the state can seize a car that was used in the commission of a designated offense, which translates to first or second degree DWI.  The forfeiture statute is confusing to say the least.  There’s a provision in the subsection on judicial determinations that says that if the person charged with the designated offense appears at the criminal hearing and is not convicted of the designated offense “the court shall order the property returned to the person legally entitled to it.”  Two other provisions in the forfeiture statute, however, have given the appellate court room to squirm out of forfeiture by permitting the court to look into whether the person in fact committed the designated offense even though not convicted of it.  Mastakoski v. 2003 Dodge Durango, 738 N.W.2d 411, 414-15 (Minn. App. 2007), review denied (Minn. Nov. 21, 2007). 

Second Guilty Plea After Rejection of First Plea Is No Bar to Double Jeopardy Challenge

State v. Jeffries, Minn.S.Ct., 10/19/2011.  This came up from the court of appeals.  Go here. 

The state charged Mr. Jeffries with felony domestic assault, then gave notice of its intent to seek to impose upon him an upward sentencing departure for being a career offender.  Mr. Jeffries then decided to plead guilty under a deal that called for an upward, but stayed sentencing departure.  The trial court not only accepted the plea, it pronounced Mr. Jefferies “convicted of that.”

And then changed his mind.  The supreme court said, not so fast.  You said you accepted the guilty plea and you said that Mr. Jeffries was guilty.  What’s left?  The majority rejects the claim of the chief justice that a trial judge has the discretion to withdraw acceptance of a guilty plea upon ascertaining additional information about a defendant’s criminal history; nothing in the rules creates such discretion.

This plea was not only accepted, it was “recorded” such that jeopardy attached.  See State v. Martinez-Mendoza.  This means that the second guilty plea must be vacated because the second conviction violates double jeopardy.  That second plea also did not act as a waiver of the double jeopardy claim.

One Spouse May Testify Against Other Spouse on Charge of Disorderly Conduct.

State v. Zais, Minn.S.Ct., 10/26/2011.  The state charged Mr. Zais with disorderly conduct.  When his wife swiped his garage door opener Mr. Zais began to remove some of the panels in the garage door.  The stated wanted to put his wife on the stand to testify to these acts and to the threats he’d made the previous evening to “do whatever he had to to get in” the house.  Mr. Zais asserted marital privilege to prevent his wife from testifying to these threats.  The trial court agreed with Mr. Zais and excluded her testimony. 

The marital privilege statute, Minn.Stat. 595.02, does not apply to “a criminal action or proceeding for a crime committed by one against the other.”  Mr. Zais argued that the applicability of this exception should be determined solely by the elements of the crime; the state, on the other had, said the court should examine the underlying conduct to make that determination.  The appellate court says that you have to do both.  When you do, then the exception kicks in and she can testify.

Defendant Had Sufficient Interest in Vehicle to Prohibit Prosecution For Placing Tracking Device on Vehicle.

State v. Hormann, Minn.Ct.App., 10/19/2011.  The state charged Mr. Hormann with stalking his then-wife, and with placing a tracking device on a car that she mostly drove but actually belonged to him.  The appellate court upheld the stalking conviction but reversed the tracking device conviction.

Along the way, the former wife testified generally about what a horrid marriage it had been and broadly characterized Mr. Hormann as someone who broke every door in the couple’s home, broke the walls, physically abused her, engaged in “a lot of violence,” was “very angry,” was “controlling” of her and of money – you get the picture.  The appellate court concluded that this amounted to inadmissible character evidence.  It was, however, harmless error to have admitted it.

Now to the tracking device.  The statute, Minn.Stat. 626A.35, subd. 1, does not apply “where the consent of the owner of the [vehicle] to which the mobile tracking device is to be attached has been obtained.”  In this case, Mr. Jacobs’ spouse had signed title to the car over to him even though she was the person who drove it the most.  Mr. Jacobs’ failure to have recorded that transfer did not defeat his interest in the car.    He was thus an “owner” under the statute and could not be prosecuted for placing the tracking device on the car.

That Judge’s Spouse Works in the Prosecutor’s Office Does Not Require Removal.

State v. Jacobs, Minn.S.Ct., 9/14/2011.  The state charged Mr. Jacobs with two counts of criminal sexual conduct; he sought to remove the trial judge because his spouse worked in the county attorney’s office that was prosecuting the case.  Cause for removal exists if the judge would be disqualified under the Code of Judicial Conduct.  In pertinent part, the code says this:

A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.
(2) The judge knows that the judge, the judge’s spouse, a person with whom the judge has an intimate relationship, a member of the judge’s household, or a person within the third degree of relationship to any of them, or the spouse or person in an intimate relationship with such a person is:
(a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;
(b) acting as a lawyer in the proceeding;
(c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or
(d) likely to be a material witness in the proceeding.
Minn. Code cf Judicial Conduct, Rule 2.11(A).

Mr. Jacobs conceded that that judge’s spouse was not acting as a lawyer, that she had no financial interest in the outcome, and that she had no reputational interest at stake in the outcome.  That leaves as the remaining basis on which to remove the judge the reason that his “impartiality might reasonably be questioned.”  The inquiry under Minnesota law is whether “an objective examination of the facts and circumstances would cause a reasonable examiner to question the judge’s impartiality.” State v. Burrell, 743 N.W.2d 596 (Minn. 2008) [emphasis in original].  Neither the fact of the marriage relationship nor the judge’s failure to disclose it to the parties meets this standard. 

Once Trial Court Accepted Guilty Plea & Adjudicated Defendant Guilty, State Had No Authority to Appeal Denial of It’s Motion To Vacate Plea.

State v. Martinez-Mendoza, Minn.S.Ct., 8/31/2011.  The state charged Mr. Martinez-Mendoza with first and second criminal sexual conduct for the sexual abuse of his girlfriend’s daughter.  The parties cut a deal whereby Mr. Martinez-Mendoza under which he would plead guilty to second degree criminal sexual conduct, receive the presumptive sentence, which the plea petition stated was 90 months, and dismiss the other count.  The trial court took the plea, adjudicated Mr. Martinez-Mendoza guilty and set a sentencing date.

At sentencing, it turned out that the presumptive sentence was only 36 months, and stayed at that.  The state moved to vacate the plea; or to reinstate the top CSC I count.  The prosecutor said that he’d relied on a colleague's opinion that the presumptive sentence was ninety months; the defense attorney said he wasn’t sure whether the  the presumptive sentence was 90 or 36 but wrote 90 on the petition to placate the prosecutor. Both counsel agreed that the plea agreement contemplated a 90 month sentence.   The trial court had not looked up the presumptive sentence. 

The trial court said that the lawyers  had been a mistake about the presumptive sentence, but that they had nonetheless made a valid plea agreement that called for dismissal of one count and a guidelines sentence for the plea to the other count.  The trial court imposed the presumptive sentence.  The court of appeals heard the state’s appeal and said that there had been a mutual mistake and reversed.  The supreme court reverses the court of appeals.

There is a preliminary, jurisdictional issue:  what’s the state’s authority to appeal the trial court’s denial of its motion to vacate, etc.?  Rule 28.04, subd. 1 allows the state to appeal from any pretrial order so long as jeopardy has not attached, so is that sufficient?  Does it matter that the trial court had both accepted the plea and adjudicated Mr. Martinez-Mendoza guilty?  Yes, it does.  Jeopardy attached when the trial court accepted the plea and adjudicated him guilty.  That means that the state had no authority to pursue an appeal.

In a footnote, responding to the vigorous dissents, the court says that the mistake about the length of the presumptive sentence was irrelevant to determining the terms of the agreement, which called for the presumptive guidelines sentence.  Finally, the court left open the question whether the state can recharge Mr. Martinez-Mendoza with the top CSC I count.