Separate Counsel, An Evidentiary Hearing, Other Due Process Protections Must be Afforded to a Defendant Who Has Made Credible Threats Against His Public Defender Before Court May Order That Defendant Has Forfeited His Right to Appointed Counsel

State v. Krause, Minn.S.Ct., 7/25/2012.  The state charged Mr. Krause with, well something, but it doesn’t really matter because he’s getting at least a remand if not a new trial for reasons having nothing to do with the merits of the state’s case against him.  All the drama was before the trial:  Mr. Krause threatened his public defender and his public defender’s family.  (He also tried unsuccessfully to get a different public defender assigned to represent him.)  The chief public defender asked the trial court to discharge the public defender office, asserting that Mr. Krause had forfeited his right to a court appointed attorney.  The trial court held a hearing on that request; Mr. Krause was there but he did not have an attorney; indeed, the chief public defender was there arguing against Mr. Krause.  The trial court granted the motion.  Mr. Krause went to trial without an attorney.  The jury convicted him.

The focus here is on the forfeiture of counsel hearing.  Because the alleged misconduct occurred outside the court room, everyone agreed that Mr. Krause was entitled to an evidentiary hearing so that the judge could decide what happened.  No, the question here is just how much process is due?  Justice G. Barry Anderson, writing for a unanimous court, reaches back to the analysis from Matthews v. Eldridge 424 U.S. 319 (1976) to come up with an answer to that question.

It turns out that quite a bit of process is owing.  First, the chief public defender can’t just barge into the judge’s chambers, shouting that some defendant just threatened his staff attorney and his staff attorney’s  family so he’s forfeited his right to a public defender.  That’s a violation of the professional conduct rules that require an attorney to “zealously assert” his client’s interest.  No, no.  The chief public defender must quietly ask to withdraw for “professional considerations.”  Which the trial court is supposed to grant.

Then, where a hearing is required, the trial court has to appoint either a public defender from a different district, or an attorney otherwise unaffiliated with the district public defender’s office to represent the defendant during a forfeiture of counsel evidentiary hearing.  This seems to say that a part time public defender within the same district won’t do.   At that hearing:

The judge should hear evidence regarding the alleged conduct that may give rise to the finding of forfeiture. The defendant should have the opportunity to offer evidence, and to cross-examine witnesses, both as to the allegations of his misconduct and the totality of the circumstances that may bear on the forfeiture finding, including his mental competency and psychological condition, any other mitigating considerations, and the willingness of appointed counsel to continue the representation.

The standard of proof at this hearing is whether Mr. Krause engaged in “extremely serious misconduct” that warrants forfeiture of his right to counsel.  “Credible threats to harm an attorney or an attorney’s family” may meet this test.  (Actual physical attacks also count.  State v. Lehman, 749 N.W.2d 76 (Minn.Ct.App. 2008). 

Court Finds Reasonable Expectation of Privacy in Contents of Cell Phone Not Disclosed to Others

State v. Barajas, Minn.Ct.App., 7/23/2012.  Moorhead officers went to an apartment building on a report that someone – it turned out to be Mr. Barajas – was living in one of the unrented apartments.  Officers determined that not only was Mr. Barajas unlawfully in this apartment he was unlawfully in the country.  The officers removed Mr. Barajas from the apartment.

An officer then returned inside the apartment; he found a flip phone, remember those?  He opened it and searched the digital photographs stored on the phone.  Low and behold he saw a photo of Mr. Barajas lying on a bed with a large amount of money.  Based on this photo officers searched the apartment and found methamphetamine.  The state charged him with first degree possession of methamphetamine with intent to sell.

Mr. Barajas moved to suppress the photographs – there were actually three of them – that the officer had obtained from the flip phone.  (He did not move to suppress the drugs as the “fruit” of the officer’s unlawful search of the flip phone.)  The trial court granted that motion, concluding that the officer had needed either a warrant or an exception to the warrant requirement to keystroke through the flip phone looking for, well, whatever he was looking for.  The officer had neither a warrant nor an exception.  Now, lest I forget, after the officer found the first photograph he asked Mr. Barajas to sign a consent to search the flip phone.  Mr. Barajas signed the consent.  The state used that consent to get the trial court to reverse his earlier ruling and to admit the photographs.  Eventually the court of appeals concluded that this consent was both involuntary and  tainted by the officer’s initial unlawful intrusion into the innards of the flip phone and did not authorize the keystroking of the phone:

[P]ermitting the police to obtain consent after conducting an unlawful search so as to circumvent the exclusionary rule, even if the police conducted the unlawful search in good faith, would undermine the constitutional limitation on unreasonable searches and the purpose of the exclusionary rule.

But, back to the first photograph.  The court of appeals concludes that the search of the flip phone’s contents was an unreasonable search.  Mr. Barajas had a cognizable expectation of privacy in the photographs because the photos were only stored on the flip phone, he had not sent them to any third party, including his cell phone carrier, and none of the three photos was visible to the public without flipping open the phone and keystroking to find them.  (A call history, on the other hand, may not enjoy this expectation of privacy because this history is exposed to  the cell phone carrier and to the caller’s recipients.)  The court suggested that one think of a cell phone as a variant of a “black box;” think United States v. Ross, 456 U.S. 798 (1982) [Hint:  containers inside a car]:

In sum, we conclude that a person has the same reasonable expectation of privacy in the concealed digital contents of a cellular telephone as a person has in the concealed physical contents of a container.  Accordingly, the police were required to obtain a search warrant before searching for photographs concealed within Barajas’s cellular telephone.

Alas, for Mr. Barajas, the erroneous admission of the photographs was harmless error.

Supreme Court Continues It’s Restrictive Interpretation of the Limitations Provisions of Post Conviction Statute

The Minnesota Supreme Court issued three Opinions today that continue the onslaught on the limitations provisions of the post conviction statute.  In general, there is a two year limitations period –which commences when the conviction becomes final - within which to commence a post conviction petition.  The post conviction statute creates five exceptions to this general rule, but those exceptions must be filed within two years of the date the claim arises.  Minn.Stat. 590.01, subd. 4(c).

The three cases are:  Sanchez v. State; Miller v. State;  and Carlton v. State.   Justice Page dissented in each of the opinions.

Court Has No Discretion to Waive Penalty for Reinstatement of Forfeited Bond

State v. Mulcahy, Minn.Ct.App., 6/11/2012.  This case is about bail bonds.  Mr. Mulcahy skipped bail, which resulted in an order to forfeit the bond that had been posted.  Eventually, Mr. Mulcahy showed up in California and Minnesota hauled him back.  The bonding company, meantime, was facing forfeiture of the bail bond so they were glad to see Mr. Mulcahy.  They asked to reinstate the bond and then to be discharged.  The court granted that request but imposed a ten cent penalty specified in Rule 702(f) of the General Rules of Practice.

The court of appeals holds that the district court has no discretion to waive this ten percent penalty.  They reach this result based on a previous case, State v. Askland, 784 N.W.2d 60 (Minn. 2010).

Judge’s Disqualification Entitles Defendant to New Trial

State v. Pratt, Minn.S.Ct., 5/23/2012.  Mr. Pratt worked as a loan officer with Universal Mortgage, Inc.  On seventeen occasions Mr. Pratt prepared loan documents to present to potential lenders that contained lots of false and/or misleading information.  The result was seventeen counts of theft by swindle.  A jury convicted him of all of those counts, plus two counts of racketeering.

Mr. Pratt went to trial, presided over by a retired state court judge, Steven Lange.  It came to light after the trial had started that the prosecutor’s office – Hennepin County – had retained Judge Lange to be an expert witness in an unrelated federal civil case.  A majority of the court of appeals had concluded that the judge was disqualified from presiding over Mr. Pratt’s trial, but a different majority concluded that the disqualification did not require reversal because Mr. Pratt had not shown prejudice.  The supreme court concluded that the judge was disqualified and that Mr. Pratt was entitled to a new trial.

After first concluding that the state had presented sufficient evidence to support the convictions, Justice Page concluded that because Judge Lange was retained by the prosecutor’s office at the same time that he was presiding over Mr. Pratt’s trial a reasonable examiner would question the judge’s impartiality.  Mr. Pratt argued that he need not show prejudice to be entitled to a new trial; the state said that he did need to show prejudice.  Five of the justices duck the question whether Mr. Pratt must show prejudice to get a new trial, saying that under these facts Mr. Pratt gets a new trial under either test. 

Justices Dietzen and Stras concurred in the result but would adopt the test from Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864 (1988).  There, the supreme court adopted a three factor test to determine whether vacate a judgment because of the disqualification of the trial court:

(1) “the risk of injustice to the parties in the particular case,” (2) “the risk that the denial of relief will produce injustice in other cases,” and (3) “the risk of undermining the public’s confidence in the judicial process.”

District Court Lacks Authority to Extend Term of Probation For Failure to Pay Restitution Beyond Two one-Year Terms.

State v. Barrientos, Minn.Ct.App., 7/9/2012.  Ms. Barrientos pleaded guilty to second degree burglary.  The trial court stayed execution of a 23 months sentence and placed her on probation for five years, even though it could have set the probation period at ten years.  Among other conditions of probation, the court ordered her to pay restitution.

As the five year term of probation neared, the state asked that Ms. Barrientos’ probation be extended for an additional five years because she had not paid the ordered restitution.  The court first granted this request, thus extending Ms. Barrientos’ term of probation to the maximum allowable period, ten years.  However, on her request, the court amended that order to extend the probation period for only one year.  The state appealed.

And lost.  The court of appeals looks at the restitution statute and finds clear support for the trial court’s decision.  Minn.Stat. 609.135, subd. 2(g) authorizes the trial court to extend the term of probation for failure to pay restitution, but only in one year increments. 

Notwithstanding the maximum periods specified for stays of sentences under paragraphs (a) to (f), a court may extend a defendant’s term of probation for up to one year if it finds, at a hearing conducted under subdivision 1a, that: (1) the defendant has not paid court-ordered restitution in accordance with the payment schedule or structure; and (2) the defendant is likely to not pay the restitution the defendant owes before the term of probation expires.

The same statute authorizes the district court to do this one more time, for a total extension of two years.  Period.  Done.  The court of appeals upholds the trial court.

The court of appeals does note that had the trial court initially set the term of probation at the maximum allowed, ten years, the trial court likely had the authority to extend the term of probation another two years for failure to pay restitution.  That question was not before them so this was just a little hint.

Supreme Court Affirms Court of Appeals Ruling That Possession of Handgun Without Permit to Carry Requires Proof of Knowledge of Possession

State v. Ndikum, Minn.S.Ct., 7/11/2012.  This comes up from the court of appeals.  Read here.  Recall that an attorney brought a briefcase with a loaded gun into a courthouse; he explained that he did not know that the gun was in the briefcase.  He got charged anyway with various gun offenses.  He requested, but did not get, an instruction that knowledge is an element of both the felony charge of possession of a dangerous weapon within a courthouse complex; and of the gross misdemeanor charge of possession of a pistol in public.  The court of appeals had reversed this conviction and now the supreme court upholds the court of appeals.

The gross misdemeanor statute, the offense of conviction, states:

A person, other than a peace officer, as defined in section 626.84, subdivision 1, who carries, holds, or possesses a pistol in a motor vehicle, snowmobile, or boat, or on or about the person’s clothes or the person, or otherwise in possession or control in a public place, as defined in section 624.7181, subdivision 1, paragraph (c), 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.

Minn. Stat. § 624.174, subd. 1a. As written, the statute contains no express mens rea or knowledge requirement.  However, legislative intent to impose strict criminal liability must be clear.  In re C.R.M., 611 N.W.2d 802 (Minn. 2000).  (That’s the kid who unwittingly brought a weapon onto school property.)  If the statute is a “public welfare statute” then it may be that the legislature has dispensed with a mens rea requirement.  But, this carry statute is intended “to promote the ability of law-abiding citizens to carry guns in public, not to restrict gun ownership and possession.”  The statute also carves out a number of exceptions to the permit requirement, including, pertinent (sort of) here, carrying a pistol between one’s home and place of business.  For these, and a couple other reasons, Justice Myers, writing for a unanimous court, holds that the state must prove that Mr. Ndikum knew he possessed the pistol.

Locking Courtroom Doors During Jury Instructions is Too “Trivial” to Implicate Defendant’s Right to Public Trial

State v. Brown, Minn.S.Ct., 7/3/12.  A jury convicted Mr. Brown of aiding and abetting the first degree murder for the benefit of a gang of Darius Miller whom the state alleged was a member of a gang that was a rival of the gang to which Mr. Brown belonged.  Justice Page, writing for a five member majority, sanctions locking the courtroom door during jury instructions, and rejects challenges to evidentiary rulings which included the admission of expert gang testimony.  Justices Meyer and Paul H. Anderson dissented.

In part, the state linked Mr. Brown to Miller’s death by testimony that a shell casing found near Miller’s body matched a shell casing recovered from the scene of a firearms offense to which Mr. Brown had pleaded guilty. Mr. Brown served time for that firearms offense in the local jail; twelve hours after Mr. Brown’s release Miller was murdered.  Jail cameras showed Mr. Brown leaving the jail wearing clothes very similar to clothes worn by Miller’s shooting.

After closing arguments but before jury instructions the trial court ordered that the courtroom door be locked for the duration of jury instructions.  In doing so the trial court gave the spectators present the choice to opt in or out:

For the benefit of those in the back. I am about to begin giving jury instructions. While that is going on the courtroom is going to be locked and people are not going to be allowed to go in and out.
So, if anybody has to leave, now would be the time. You are welcome to s[t]ay. But I just want to make sure that everybody knows that the courtroom is going to be locked. We are all good? Deputy?

Now, locking the court room doors is like a civil commitment: it has to be the least restrictive alternative.  The case law has been clear for nearly thirty years.  Waller v. Georgia, 467 U.S. 39 (1984):

the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

One of the recent instances where the trial court closed the courtroom during the testimony of two witnesses was State v. Mahkuk, 736 N.W.2d 675 (Minn. 2007).  The problem there, however, was that the reason asserted for the closure – intimidation of the two witnesses – had no factual support.  But, at least, somebody put up a reason.  Not so here, where the trial court offered up no reason whatsoever.  While the majority dropped in a footnote expressing its “concern” with this absence of a statement of reasons, the concern wasn’t enough to require anything be done about it.

Justice Page sanctions the locking of the court room doors here by characterizing it as “trivial,” borrowing that term from State v. Lindsey, 632 N.W.2d 652 (Minn. 2001).  What was “trivial” there was throwing two kids out of the court room, who were statutorily barred from being in there anyway.  Just how Justice Page equates perhaps the most important function that the trial court performs in a criminal trial– jury instructions – with tossing two kids isn’t readily apparent.  Under the “trivial” analysis the court looks at different factors, which include:

that the courtroom was never “cleared of all spectators”; that the trial remained open to the general public and the press; that there was no period of the trial in which members of the general public were absent during the trial; and that at no time was the defendant, his family, his friends, or any witness improperly excluded.

The court also upheld the admission of evidence of Mr. Brown’s firearms conviction as a prior bad act.  The court also upheld the admission of gang testimony, but under a plain error analysis.  The court found no plain error in the instruction on aiding and abetting murder.

Justice Meyer, joined by Justice Paul Anderson, dissented on the courtroom closure issue.  She points out that Minnesota does not distinguish between a total closure and a partial closure, (although the “trivial” alternative analysis may be that distinction under a different label).  That being so, a full Waller analysis was required, especially consideration of alternatives to even a partial closure.  Justices Meyer and Anderson also rejected resort to the “trivial” analysis under Lindsey. 

Doubling Potential Punishment by Amended Complaint After a Defendant Waives Counsel Requires a Renewed “Comprehensive Examination” of the Waiver

State v. Rhoads, Minn.S.Ct., 5/23/2012.  The state charged Mr. Rhoads with second degree burglary.  Mr. Rhoads decided to represent himself, after which the state doubled down by adding a first degree burglary count.  This put him at risk of a sentence twice what he had been facing when he made the waiver.  On the day of trial, Mr. Rhoads persisted in representing himself (and also waived a jury trial); the trial court, however, neither arraigned Mr. Rhoads on the amended complaint, nor asked him if he understood what the new maximum punishment would be if he were convicted.  Justice Dietzen, writing for five members of the court, concludes that Mr. Rhoads’ renewal of his waiver of counsel was neither knowing nor intelligent so he gets a new trial.

In reaching this conclusion the court does not require that a pro se defendant renew a valid waiver of counsel every time he steps into the well of the courtroom; rather, so long as nothing has changed since the initial waiver he’s good to go.  The majority carves out an exception here, however, because the filing of the amended charge doubled the maximum possible punishment.  The majority labels this a “substantial change in circumstances” that requires a valid renewal of the waiver of counsel.  Here, Mr. Rhoads did continue to say that he wanted to represent himself, but:

when the State files an amended charge that doubles the maximum possible punishment, a district court should conduct a comprehensive examination of the defendant’s understanding of the increase in the maximum possible punishment. A district court’s failure to conduct such an examination, however, does not require reversal when the particular facts and circumstances of the case demonstrate that the defendant renewed his waiver-of-counsel with an understanding of the increase in the maximum possible punishment.

So, two ways to get it right:  formal renewal of the waiver, under the analysis from State v. Worthy, 583 N.W.2d 270 (Minn. 1998); or discern an implied waiver from the facts and circumstances.  The Worthy analysis requires  the trial court to conduct a “comprehensive examination” of a defendant’s “comprehension of the charges, the possible punishments, mitigating circumstances, and any other facts relevant to the defendant’s understanding of the consequences of the waiver.”   None of that happened for Mr. Rhoads, and there was nothing in the record from which the majority could pull out an implied waiver of counsel.

Justice Stras, joined by Justice Page, dissents.  Justice Stras says that the initial waiver of counsel is effective right through sentencing regardless of what either the state or the court do following the waiver.  Having taken over the wheel, Justice Stras would strap Mr. Rhoads in for the duration; the keys are in his pocket so his only recourse is to park the car, throw the keys back up onto the bench, and ask for his lawyer back.  The problem is, he’s only going to get that result  under the rather exacting standard of State v. Clark, 722 N.W.2d 460 (Minn. 2006).  That standard requires that the relinquishment request be timely, reasonable, and in the face of “extraordinary circumstances.”   In Clark, the request came on the third day of trial; not going to happen.

Failure to Object to Mistrial, Having the Opportunity to do so, is Highly Indicative of Consent to that Mistrial

State v. Hunter, Minn.Ct.App. 7/2/2012.  Mr. Hunter struck a woman in a crosswalk with his vehicle and then left.  The woman died a week later, resulting in charges of leaving the scene of an accident involving death and driving on a suspended license.  The jury heard the case, talked about it  – sequestered - for three days, then seemingly, at least to the trial judge, threw up its hands, deadlocked. 

During its deliberations, the jury asked a lot of questions.  Here’s the first day’s batch:

(1) What is the general process of notification for the state of Minnesota when your license is suspended? (2) What is the general process of notification for the state of Minnesota when your license is reinstated? (3) Did the speeding ticket received indicate besides speeding that the police officer knew his license was suspended? (4) Can we receive the stenographer notes of witness testimony from the trial? (5) Can we see statements shown to witnesses to refresh their memory if not entered as exhibits?

On the second day of deliberations, the jury said that it was deadlocked.  Without giving an “Allen” charge, the trial court encouraged them to keep at it.  His pep rally resulted in this missive from the jury:

Does (prudent men and women, page 1, paragraph 5) apply to us as jurors, the witnesses, or both?

On the third day of deliberations, the jury told the judge that they really had other plans:

Can any consideration be given for someone who needs to leave for a bus trip next Monday through Thursday?

and

We would like to dismiss today at 4:00 p.m. for an anniversary mass today for a death in the family.

The was the last straw.  The trial court threw up his hands and declared a mistrial.  The trial court later explained that he’d done that because two of the three charges – the fleeing charges – were basically the same thing and the third charge was nothing but a stupid misdemeanor; if the jury couldn’t reach a verdict after three days then it just wasn’t going to happen.  Defense counsel didn’t affirmatively object although whether his mouth was agape the opinion doesn’t say.

Before the retrial, counsel moved to dismiss on double jeopardy grounds.  Now, if a defendant consents to a mistrial then he’s waived any jeopardy argument.  State v. White, 369 N.W.2d 301 (Minn.Ct.App., 1985).  On the other hand, if he does object then jeopardy bars a second trial unless a “manifest necessity” required that the first trial be terminated.  State v. Fuller, 374 N.W.2d 722 (Minn. 1985).  Not objecting is not the same thing as consenting, but it’s a factor to consider, and a pretty strong one at that.  Where, as here, defense counsel had ample opportunity to object – both during in chambers discussions and in the court room – and doesn’t, then, well, counsel consented.  Whether Mr. Hunter, himself, had to object – well, the court doesn’t take up that question because no one brought it up in the trial court. 

The court of appeals, for good measure, also concluded that there was a “manifest necessity” to declare the mistrial. 

Source Code Opinion Affirms Reliability of Intoxilyzer 5000EN

[Source Code Litigation], Minn.S.Ct., 6/27/12.  In a 4-3 Opinion, the supreme court has upheld the district court’s conclusion that the results of measured breath alcohol from the Intoxilyzer 5000EN are reliable, and that should individual litigants seek to introduce evidence related to the challenge’s results may not do so in any upcoming trials. 

Justices Page, Paul Anderson and Meyer dissented.  You may wish to read the dissent closely if you are thinking of trying to offer evidence of an unreliable result in a particular case for hints of challenges to be made.

Misdemeanor Attempt to Evade/Elude Police is a General Intent Crime

State v. Wilson,  Minn.Ct.App., 5/7/2012.  A jury convicted Ms. Wilson of misdemeanor attempting to evade or elude a police officer by some means other than fleeing in a motor vehicle); she was apparently running from an officer who suspected that the fellow she was with had just stabbed a guy in a bar.  At trial, she wanted an instruction on voluntary intoxication.  The trial court said, no, that the offense was not a specific intent offense and so intoxication was not an available defense.

The court of appeals agreed with the trial court. 

Now, fleeing a police officer in a motor vehicle is a specific intent crime, State v. Johnson, 374 N.W.2d 285 (Minn.Ct.App. 1985). The difference derives from the wording of the fleeing statute which, conveniently, employs the phrase “with intent to”:

For purposes of this section, the term “flee” means to increase speed, extinguish motor vehicle headlights or taillights, refuse to stop the vehicle, or use other means with intent to attempt to elude a peace officer following a signal given by any peace officer to the driver of a motor vehicle.

. . . .

Whoever by means of a motor vehicle flees or attempts to flee a peace officer who is acting in the lawful discharge of an official duty, and the perpetrator knows or should reasonably know the same to be a peace officer, is guilty of a felony. . . .

Here’s what the evading/eluding subsection of the same statute that contains the fleeing “with intent to” phrase says:

Whoever, for the purpose of avoiding arrest, detention, or investigation, or in order to conceal or destroy potential evidence related to the commission of a crime, attempts to evade or elude a peace officer, who is acting in the lawful discharge of an official duty, by means of running, hiding, or by any other means except fleeing in a motor vehicle, is guilty of a misdemeanor.

[Italics added.]  The court of appeals narrowly (and literally) reads State v. Fleck, ___ N.W.2d. ___ (Minn. 2011) to make the absence of “with intent to” dispositive, form over substance.  Read about Fleck, here.  The court rejected the seemingly obvious argument that “for the purpose of” means the same thing as “with intent to”. 

Ms. Wilson has petitioned the supreme court for review.

Court Again Rejects Batson Challenge; Finds Erroneous Self Defense Instructions Harmless

State v. Carridine, Minn.S.Ct., 5/9/2012.  A jury convicted Mr. Carridine of premeditated murder in the first degree for the shooting death of Lorenzo Guffie.  Mr. Carridine said that he shot Mr. Guffie without intending to  in self defense.  Before that, however, the two men argued, first inside a bar and then out on the street, over whether Mr. Guffie had robbed Mr. Carridine,. The state and the defense disagreed over which side was the aggressor in the argument, each saying that it was the other who “started it.”  The state’s witnesses said that once the argument moved outside that Mr. Guffie got in his car and began to drive away.  Mr. Carridine went up to the car, said something like “get me some” and shot at the moving car six times.  Mr. Carridine said that it was Mr. Guffie who drew down on him and that it had been his intent only to shoot at the car door.

The main issues on appeal had to do with jury instructions on self defense and on jury strikes.  The state removed two potential jurors of color for cause, to which Mr. Carridine objected on Batson grounds.  Alas, the court continues its streak of never reversing a conviction for this reason (or, maybe there’s been one).  The state’s first strike was of J.C., an African American woman.  Here’s the court’s summary of her qualifications:

J.C. is a nurse at the V.A. Medical Center. About 20 or 30 years earlier she testified as an alibi witness in her brother’s assault trial. Her brother was convicted and served time in prison. Although J.C. testified that she respected the jury’s verdict, she said she was “disappointed” with the decision and that it made her feel “sad.” Although she said that she would be able to listen to the testimony and be impartial, she said the trial “will bring up memories of the past.” The State asked her if she felt comfortable sitting in judgment of another person, and she replied, “Not completely. . . . I would have to – I would have to pray and ask for guidance to do the right thing.”

The state’s second strike was of P.G., an Asian-Pacific Islander:

P.G. was unemployed and looking for work. The State asked P.G. how he would view the State’s witnesses, who may have lifestyles that he does not particularly like, and P.G. responded that he would not judge them by their “nature of looks or how they sit” but would “look at the facts.” When asked if the witnesses’ prior bad acts would affect whether he believed their testimony, P.G. replied that he “would go by the weight of the facts.”

The court accepted the state’s reasons for striking J.C. as race neutral.  As to P.G., the court said that the defense had not even made out a prima facie case.

Before trial, Mr. Carridine had pled guilty but then asked to withdraw that plea; he sent the judge a letter in support of that request in which he told the judge what had happened which led him to believe that he had a self defense claim.  At trial, the court permitted the state to impeach Mr. Carridine.  The supreme court ducks the question whether this was impermissible impeachment by saying that even so the error was harmless.

Because Mr. Carridine maintained that it had not been his intent to kill anyone, the supreme court says that it was error to have given the jury CRIMJIG 7.05, justifiable taking of life, which includes language about intentional killing.  Instead, the jury should have been given CRIMJIG 7.06, which does not include language about intentional killing.  The court reviewed this error under a “plain error” analysis and concluded that the error had not affected Mr. Carridine’s substantial rights.  The court also concluded that there was enough evidence to have warranted the instruction on revival of the right of self defense.

Finally, the court considered and rejected a number of claims of prosecutorial misconduct.

A Murder Committed So That a Child is Intended to Find the Body May Be Aggravating Factor

State v. Robideau, Minn.Ct.App., 6/25/2012.  After remand from the Minnesota Supreme Court, go here, this case is back in the court of appeals.  You will recall that 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 reversed the court of appeals, saying that the child’s mere presence in the house where the murder occurred was insufficient to support a departure.

In its remand, the supreme court dropped in this lesson plan for what should occur next:

The State argues for the first time on appeal that when a child discovers the body of a murdered parent, the crime is significantly more serious than the typical murder, and warrants treatment as a new aggravating factor. A defendant who commits a murder in such a way that the child is intended to be the first to discover the body of a murdered parent may warrant treatment as a new aggravating factor. But that issue was not presented to the district court, and thus is not properly before us. Moreover, the district court did not find that Robideau intended for D.C. to discover his mother's body.

Sure enough, the trial court adopted this lesson plan and imposed the aggravated sentence yet again.  Mr. Robideau appealed again and the court of appeals upholds the trial court again.  Mr. Robideau argued that such conduct would constitute the uncharged crime of child endangerment, which the court of appeals characterized as “absurd” because child endangerment requires that the defendant have assumed responsibility for all or a portion of the child’s care, the same child whom he intended find his dead mother.  Mr. Robideau also argued that whatever he did to ensure that the child discovered his mom’s dead body occurred after the murder was complete and thus not subject to being an aggravating factor.  The court of appeals said that the treatment of the body of a murder victim is part of the murder so yes it is subject to being an aggravating factor.

Turning to the facts to support that Mr. Robideau intended that the child find his dead mom, the court of appeals found plenty of them:

Robideau did not attempt to remove the body or summon help to the scene. [The victim’s] car was still parked in the driveway in the morning, so D.C. knew that his mother was still in the house. D.C. was unlikely to leave the house, especially without his mother’s permission, because it was January and because he was too young to drive. D.C. knew that his mother would be up and packing the house in the morning. Robideau knew that D.C. was the only other person in the house, and that no one was planning to come to the house to help [the victim] pack for her upcoming move. Thus, Robideau knew that [the victim’s] dead body would be in the house in the morning, that D.C. would be alone in the house in the morning, and that D.C. would not be able to leave without consulting his mother for permission. The inevitable result of all of these factors is that D.C. would find his mother’s lifeless body.

Finally, Mr. Robideau complained that the state had not given sufficient notice of intent to seek an aggravated sentence on this basis.  The court of appeals gives the state a pretty easy go of this, letting some pretty vague, sloppy language suffice for the requisite notice.

A Felony Sentence Permissively Consecutive to a Gross Misdemeanor Sentence is Calculated at the Defendant’s Actual Criminal History Score Rather Than at a Zero Criminal History Score

State v. Campbell, Minn.S.Ct., 5/9/2012.  A jury convicted Mr. Campbell of a slew of charges but for simplicity’s sake the two that are pertinent were gross misdemeanor criminal vehicular operation resulting in bodily harm and felony fleeing a police officer resulting in death.  The trial court gave Mr. Campbell a 12 month sentence on the gross misdemeanor and then stacked a 234 month sentence for the felony fleeing.  The court got to 234 by sentencing at Mr. Campbell’s actual criminal history score of 3, rejecting Mr. Campbell’s argument that this consecutive sentence should have been sentenced at a criminal history score of 0.  Justice Meyer, writing for a 4 member majority – Justices Stras, Page and Paul H. Anderson dissenting – sides with the trial court.

These sentences are consecutive based on the multiple victim exception, Minn. Sent. Guidelines 2.F.2.f. and Minn. Stat. §§ 609.035, subd. 5 and 609.15, subd. 1(b) (2010).  Mr. Campbell argued successively to the court of appeals that under the Guidelines permissive consecutive sentences are sentenced at a zero criminal history score.  The pertinent Guidelines provision that’s in play here is 2.F.2.  Here’s what the Guidelines say:

For each offense sentenced consecutive to another offense(s), other than those that are presumptive, a zero criminal history score, or the mandatory minimum for the offense, whichever is greater, shall be used in determining the presumptive duration. (Emphasis added.)

The majority decided that “to another offense” is ambiguous, largely because the Guidelines, themselves, do not define the word “offense.”  That being so, then the majority can then easily choose to limit the phrase to felony crimes, which takes 2.F.2 out of the equation here and permits the trial court’s result to stand.  Justice Stras, on the other hand, finds no ambiguity at all; he says that no matter where you look, an “offense” is defined to be any “crime or transgression of the law, whether a misdemeanor or a felony.”  See The American Heritage Dictionary of the English Language 1222 (5th ed. 2011).  Justice Stras cites a litany of definitions that are the same, including these from two editions of Blacks Law Dictionary: 

Black’s Law Dictionary 1186 (9th ed. 2009) (“A violation of the law; a crime, often a minor one.”);

Black’s Law Dictionary 1081 (6th ed. 1990) (“A felony or misdemeanor; a breach of the criminal laws; violation of law for which penalty is prescribed.”).

To give the majority its due, Justice Stras counts up the number of times that the Guidelines uses the phrase “felony offense” and finds a total of 19 times!  From this proliferation of the phrase Justice Stras concludes that if the Guidelines had wanted to limit 2.F.2 only to felony offenses sentenced consecutively to other felony offense it knew how to do that.

It remains to be seen just how expansive a read this opinion will be given down in the trenches of trial courts.  This opinion could certainly push prosecutors to add misdemeanor and gross misdemeanor offenses to initial felony charges as additional coercion to get a plea.  Imagine a young black male who allegedly strangles his girlfriend as she is attempting to call 911; to prevent that call this young black male pushes aside his girlfriend’s sister to get at the phone.  Is a misdemeanor assault charge against the sister on the horizon, and because there are two victims, may the felony strangulation sentence be stacked at a higher criminal score on top of the misdemeanor sentence? 

The Guidelines do not apply to misdemeanor/gross misdemeanor sentencing.  State v. Kier, 678 N.W.2d 672 (Minn.Ct.App. 2004); the exception, at least until now, had been that a defendant could not be required to serve more total time in confinement on consecutive misdemeanor/felony sentences than he would have to serve if he were sentenced consecutively on two felonies.  State v. Dulski, 363 N.W.2d 307 (Minn. 1985).

Dismissal on the Merits, After Jeopardy Attaches, Precludes Filing of New Charges, Even if Dismissal Was Error.

State v. Sahr, Minn.S.Ct., 4/25/2012.  This is an extremely complicated and important Opinion about which I could write a lot, but I’m going to let the concurrence do the talking.  The Opinion raises serious questions about the respective role of the state and the defense in the prosecution of criminal cases.  Justice G. Barry Anderson said it best, certainly better than I could:

I begin with the observation that this case rests at the intersection of constitutional and statutory protections against self-incrimination and provisions of the Minnesota Rules of Criminal Procedure. The dissent argues that “the district court erred when it considered Sahr’s untimely motion to dismiss the complaint based on a known defect in the complaint after the jury was sworn.” The dissent also argues that when a defendant deliberately fails to raise a known defect in the complaint before the jury is sworn, constitutional and statutory double jeopardy protections do not bar future prosecution. The implication of this latter argument is that a defendant not only has a right, but an obligation, to challenge known defects in a complaint before trial and failure to do so not only results in a waiver of the right to challenge the complaint at a later time, it also automatically results in forfeiture of double jeopardy protections.

…..

What happened here was not the failure of the State to draft a sufficiently detailed complaint, such as was alleged to have occurred in State v. Stagg, 342 N.W.2d 124 (Minn. 1984). Here, the prosecution charged the wrong offense altogether, an offense which everyone concedes the defendant was not guilty of. Not cited by either party, but perhaps relevant here, are the provisions of Rule 9, which require the defense to inform the prosecutor in writing of “any defense, other than not guilty, that the defendant intends to assert.” Minn. R. Crim. P. 9.02, subd. 1(5) (emphasis added). The dissent dismisses this language by characterizing it as a discovery rule; perhaps, although the relevance of that characterization is not immediately evident. What it does suggest, however, is that a defendant has no obligation to tell the State it cannot prove the crime charged. The dissent cites no authority, and I have not found any, that specifically holds that the provisions of Minn. R. Crim. P. 10.01 apply to the kind of fundamental failure of the State to charge the appropriate offense at issue here.

The state charged Mr. Sahr with criminal sexual conduct in the first degree under the subsection that prohibits a person from engaging in “sexual contact” – bare genital to bare genital - with a person under 13 years of age when that person is more than 36 months older than the victim.  The problem was, which Mr. Sahr’s attorney knew practically from the day of the filing of the Complaint, the state only had proof to support the claim that Mr. Sahr had touched the victim’s bare vaginal area with his hand.  Oops.

After the jury was impaneled and sworn, defense counsel brought this little problem to the trial court’s attention.  In response, the state sought to amend the Complaint to add second degree criminal sexual conduct, a crime that the state could prove.  The trial court refused to allow the amendment and dismissed the Complaint, concluding that there was insufficient evidence to convict Mr. Sahr.  Thereafter, the state sought to file a new Complaint charging second degree criminal sexual conduct, but the trial court denied that request on double jeopardy grounds.

What the state wanted the courts to say was that defense counsel had an obligation to alert the prosecutor before jeopardy attached that it had charged the wrong crime.  The trial court rejected this proposition, saying that this would shift the burden of responsibility in charging to the defendant.  Alternatively, the state wanted to be able to get an instruction on second degree criminal sexual conduct as a lesser included offense of the first degree charge.  The trial court also rejected this request, saying that the state could not charge a crime for which it concededly lacked sufficient evidence to prove and then piggy back a lesser included crime.

Justice Page concluded that the trial court had dismissed the Complaint on the merits for lack of sufficient evidence.  This conclusion essentially dictates the result that the majority reached:  double jeopardy prohibits a new complaint against Mr. Sahr.  It’s well settled law that where there is an acquittal on the merits, double jeopardy bars review of any underlying issues, including erroneous legal rulings.  State v. Large, 607 N.W.2d 774 (Minn. 2000).  This resolution meant that the majority did not have to decide the thornier question whether Mr. Sarh somehow waived any double jeopardy protection by deliberately failing to raise a known defect in the complaint before the jury is sworn.  Even if the trial court was wrong in rejecting the waiver claim, Large precluded appellate review if the dismissal was on the merits.

Ominously, Chief Justice Gidlea and Justice Dietzen would have reached the waiver issue and would have concluded that the defense had such an obligation to tell the prosecutor that it had charged the wrong crime.  Amazingly, only the trial court judge and Justice G. Barry Anderson squarely reject this notion and say that the defense has no obligation to alert the state that it has filed a complaint that charges the wrong crime.

Padilla Not Retroactive

State v. Campos, Minn.S.Ct., 6/20/2012.  In a 5-2 Opinion, Chief Justice Gildea holds that Pidilla will not be applied retroactively in Minnesota.  Justices Page and Paul Anderson dissented.  The majority did remand the case, nonetheless, to determine if Mr. Campos was entitled to withdraw his plea because the trial court did not comply with the requirement in the criminal rules that he be informed that there could be adverse immigration consequences flowing from his plea.  See Minn.R. Crim. P. 15.01, subd. 1(6)(I).

10/24/2012:  Whether Padilla is retroactive is pending before the United States Supreme Court.

Short-form Removal For Cause

State v. Spangler, Minn.Ct.App., 6/18/2012.  The state charged Ms. Spangler with DWI.  It turned out that the prosecutor’s next door neighbor appeared on the list of prospective jurors.  The prosecutor suggested that his neighbor be released from the panel and replaced with another, a suggestion that Ms. Spangler’s attorney accepted.  Following her conviction, Ms. Spangler argued that this arrangement created structural error because the state had been given an extra peremptory strike.

The court of appeals rejects this claim, saying that the release of the prosecutor’s neighbor was a “stipulation between the parties.”  The court calls it a “short-form removal for cause” that served both parties’ interests in efficiency.  Although not specifically authorized by the rules it’s not forbidden either.  Because the court concludes that there was no error at all, it does not get to the structural error claim.

Get Your Gun, Pa

State v. Yang, Minn.Ct.App., 6/18/2012.  Mr. Yang was out in his own front yard, minding his own business if you disregard the gun he was carrying around.  Someone called 911 to report that an Asian man wearing red pants – Mr. Yang -  had a gun at a certain location and the cops came calling, drew down on Mr. Yang and his buddies and ordered them all to the ground.  An officer cuffed Mr. Yang and asked him where the gun was; Mr. Yang said it was in his coat. 

The officers initially arrested Mr. Yang for carrying a handgun in a public place; recall that having a permit to carry a handgun in a public place is a defense, not an element of the offense.  Read about that here.   The state upped the charge to possession of a handgun by an ineligible person when they learned that he had a prior felony.  Mr. Yang argued that the officers had no reasonable articulable suspicion that he was engaged in criminal behavior in a public place, making his seizure and the discovery of the gun unlawful.

Now, back in ‘03 when the gun rights guys pushed through the carry/conceal law one imagines that they took care to ensure that they could do whatever they wanted to do with their guns while in their own home and curtilage, it being a castle and all.  So, they wrote the law to say that you needed a permit to carry/conceal only in a “public place,” and then they made sure to provide a definition of just what a “public place” was:

"Public place" means property owned, leased, or controlled by a governmental unit and private property that is regularly and frequently open to or made available for use by the public in sufficient numbers to give clear notice of the property's current dedication to public use but does not include: a person's dwelling house or premises, the place of business owned or managed by the person, or land possessed by the person; a gun show, gun shop, or hunting or target shooting facility; or the woods, fields, or waters of this state where the person is present lawfully for the purpose of hunting or target shooting or other lawful activity involving firearms.

Minn. Stat. § 624.7181, subd. 1(c). No one thought that Mr. Yang’s front yard was government property so the question was whether his front yard was private property dedicated to public use.  The state said, yes, because the definition excludes “land possessed by the person” which the state thought did not include residential land.  Mr. Yang said, no, because the definition excludes “a person’s dwelling house or premises,” so no one’s front yard was a public place.  The court of appeals didn’t like either of those suggestions; instead, they looked only at the first half of the definition which said what a public pace was:  private property that had been dedicated to the public for its use.  Think parks and water treatment plants.  Not one’s front yard under anyone’s definition so for Mr. Yang, his yard – not his neighbor’s – is not a public place.  So long as Mr. Yang (and the cops) know where the boundary line is, and he stays within it then he can pack his gun around all he wants.  (Unless he’s intoxicated, in which case there’s a different, judicially created definition of “public place”.  State v. Gradishar, 765 N.W.2d 901 (Minn.Ct.App., 2009). 

Court Requires Reasonable Suspicion to Authorize Search of Parolee’s Residence

State v. Heaton, Minn.Ct.App., 5/7/2010, petition for further review pending.  Following a prison stint for unlawful possession of a firearm by an ineligible person, Corrections placed Mr. Heaton on intensive supervised release.  One of his parole conditions stated:

The offender will submit at any time to an unannounced visit and/or search of the offender’s person, vehicle or premises by the agent/designee.

After a while, his parole officer promoted him to regular supervision.  As luck would have it, shortly thereafter Mr. Heaton was a passenger in a vehicle that a Carlton County deputy stopped.  The deputy arrested the driver on some warrant.  For some reason – apparently not challenged - the deputy searched Mr. Heaton and found $3,000.00 in cash.  Mr. Heaton said he’d sold his car but he couldn’t say to whom and he didn’t have a receipt.  Nothing else happened on the side of the road.  Later, however,  the deputy called up Mr. Heaton’s parole officer to tell him about the stop, and Mr. Heaton did the same.  The parole officer thought it a bit suspicious that Mr. Heaton had this wad of cash on a short order cook’s salary and no receipt so he went over to Mr. Heaton’s apartment.  Mr. Heaton eventually showed up; the parole officer asked Mr. Heaton, who had immediately been cuffed when he got there, for consent to search the apartment; Mr. Heaton made no response.  The officers tossed the place and found a gun and narcotics.

Mr. Heaton moved to suppress the gun and narcotics, arguing he did not consent to the search and that the parole office lacked reasonable suspicion to conduct the search.  Apparently, no one spent too much time discerning whether Mr. Heaton had or had not given consent as the courts sent straight to the search issue.

Minnesota has previously said that a probationer has a diminished expectation of privacy so that a probationer’s home may be searched without a warrant so long as a valid condition of probation exists and authorities have reasonable suspicion of criminal conduct.  State v. Anderson, 733 N.W.2d 128 (Minn. 2007); relying somewhat dubiously on United States v. Knights, 534 U.S. 112 (2001).  [“We do not decide whether the probation condition so diminished, or completely eliminated, Knights' reasonable expectation of privacy ... that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment.”]But, this holding has not been extended to parolees. 

Parolees in Minnesota are subject to a search condition specified by statute, Minn.Stat. 244.14, subd. 4, which says that a parolee:

shall submit at any time to an unannounced search of the offender’s person, vehicle, or premises.

Getting to work, the court balances Mr. Heaton’s reasonable expectation of privacy with the state’s interest in making sure that parolees abide by their release terms and in protecting the public.  It finds that Mr. Heaton’s interests were diminished the same as a probationer’s and so all that the officers needed was a reasonable suspicion.

Turning to that question, the court of appeals affirms the trial court’s determination that there was such reasonable suspicion.  The trial court had identified four facts to support its determination that the officers had a reasonable suspicion:  (1) Mr. Heaton’s status had recently been up graded from intensive supervision to regular supervision; (2) Mr. Heaton’s “thin” explanation for possession of a large amount of cash (3) in light of his cook’s salary, and (4) he’d been stopped with someone who had an active warrant.  The court of appeals concedes that Mr. Heaton’s criminal record and status as a parolee would not support a reasonable suspicion; but, when considered along with everything else it was okay at least to mention this.  The court rejects supporting a reasonable suspicion on Mr. Heaton’s presence with someone with a warrant; but, again, with everything else there was still a valid basis for a reasonable suspicion.

Judge Ross concurred in the result, but he wrote that the police have the right to search a parolee’s residence without any suspicion at all.  He relies on Samson v. California, 547 U.S. 843 (2006).  The majority distinguished Samson because the California parole statute stated that parolees had to agree to be searched with or without cause.  Well, here’s a (long) snippet from the syllabus of Samson:

Parolees, who are on the “continuum” of state-imposed punishments, have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is. “The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.” Morrissey v. Brewer, 408 U.S. 471, 477, 92 S.Ct. 2593, 33 L.Ed.2d 484.  California's system is consistent with these observations. An inmate electing to complete his sentence out of physical custody remains in the Department of Corrections' legal custody for the remainder of his term and must comply with the terms and conditions of his parole. The extent and reach of those conditions demonstrate that parolees have severely diminished privacy expectations by virtue of their status alone. Additionally, as in Knights, the state law's parole search condition was clearly expressed to petitioner, who signed an order submitting to the condition and thus was unambiguously aware of it. Examining the totality of the circumstances, petitioner did not have an expectation of privacy that society would recognize as legitimate. The State's interests, by contrast, are substantial. A State has an “ ‘overwhelming interest’ ” in supervising parolees because they “are more likely to commit future criminal offenses.” Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 365, 118 S.Ct. 2014, 141 L.Ed.2d 344. Similarly, a State's interests in reducing recidivism, thereby promoting reintegration and positive citizenship among probationers and parolees, warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment. The Amendment does not render States powerless to address these concerns effectively. California's 60– to 70–percent recidivism rate demonstrates that most parolees are ill prepared to handle the pressures of reintegration and require intense supervision. The State Legislature has concluded that, given the State's number of parolees and its high recidivism rate, an individualized suspicion requirement would undermine the State's ability to effectively supervise parolees and protect the public from criminal acts by reoffenders. Contrary to petitioner's argument, the fact that some States and the Federal Government require a level of individualized suspicion before searching a parolee is of little relevance in determining whether California's system is drawn to meet the State's needs and is reasonable, taking into account a parolee's substantially diminished expectation of privacy.

Justices Stevens, Souter and Breyer dissented; Justice Stevens said that the court had created “a regime of suspicionless searches, conducted pursuant to a blanket grant of discretion untethered by any procedural safeguards, by law enforcement personnel who have no special interest in the welfare of the parolee or probationer.”  So there.

A petition for review is pending.

Court Gives Officers an Effective Green Light to Ask Routine Questions About Contraband or Weapons in Cars During Routine Traffic Stops

State v. Smith, Minn.S.Ct., 6/6/2012.  Following a traffic stop for speeding and no seat belt, officers found a pistol in the car for which Mr. Smith did not have a permit.  this 5-2 opinion will make it harder, if not nearly impossible, to challenge an officer’s expansion of routine traffic stops by questions about the presence of either contraband or weapons in the car.

  Two state patrol officers – one a trainee and the other his minder - clocked Mr. Smith, who was not wearing a seat belt, doing 77 miles per hour in a 65 miles per hour zone in his Chevy Camaro.  Mr. Smith actually stopped his Camaro before the troopers signaled him to do so.  Trainee trooper chatted up Mr. Smith while minder trooper sat in the patrol car listening by means of a wireless radio signal.  Trainee trooper asked the standard question, “Do you know why you were stopped,” and Mr. Smith gave the correct answer, “No, I don’t.”  Trainee trooper asked for Mr. Smith’s license and proof of insurance.  Mr. Smith produced his license but said he had just switched insurance carriers and didn’t have the new card.  At this point minder trooper came over to join the conversation.

Minder trooper asked why Mr. Smith had pulled over if he didn’t know why he got stopped.  Mr. Smith said he needed to enter an address into his GPS as he was travelling from Illinois to meet someone in St. Paul.  Minder Trooper thought that Mr. Smith was shaking “very violently;”  Mr. Smith said this was from an undiagnosed medical condition that he’d had all his life.  Minder trooper didn’t believe that and assumed that the shaking was due to nervousness.  Minder trooper also saw a box of ammunition partially covered with debris on the floor in the backseat.

At this point Trainee and minder trooper conferred;  minder trooper thought that Mr. Smith was up to something criminal.  Minder trooper instructed trainee trooper to return to the car, ask Mr. Smith for his middle name, and ask him if he had anything illegal or any weapons in the car.  Trainee trooper did this and Mr. Smith coughed up a pistol for which he did not have a permit.  Neither trooper found any illegal contraband in the car, minder trooper agreed that Mr. Smith had been cooperative and that his driver’s license was valid.

Mr. Smith complained that by asking  him whether he had anything illegal or any weapons in the car the troopers expanded the scope of the traffic stop without reasonable suspicion of criminal activity, making the seizure of the pistol illegal. 

Start with State v. Askerooth, 681 N.W.2d 353 (Minn. 2004).  There, the court said that to remain constitutional, an intrusion not strictly tied to the circumstances that rendered the initiation of the stop permissible must be supported by at least a reasonable suspicion of additional illegal activity.  Each “incremental intrusion” during the stop must be tied to and justified by one of the following:

(1) the original legitimate purpose of the stop, (2) independent probable cause, or (3) reasonableness, as defined in Terry [v. Ohio].

Mr. Smith’s challenge was to the scope of the stop, not its duration.  Here, the Justice Paul Anderson, writing for five members of the court, assume without deciding that trainee trooper’s question about having either contraband or a weapon in the car did expand the scope of the stop, rejecting the state’s argument that a single question can never expand the scope of a traffic stop.  Justice Anderson concludes that Mr. Smith’s “extreme shaking” and what the majority decided to characterize as his “evasive response” about the etiology of his shaking provided the officers with reasonable, articulable suspicion to support this assumed expansion of the scope of the traffic stop.  While nervous behavior by itself likely would not support this expansion – see the cases cited in the opinion - here it was the nervousness and shaking alongside his evasive explanation of the shaking that sealed Mr. Smith’s fate.

Justice Page, joined by Justice Meyer dissented.  Justice Page rejected the majority’s characterization of Mr. Smith’s answer about the etiology of the shaking as “evasive.”  Further, the dissent accused the majority of ignoring if not rejecting past opinions - e.g., State v. Burbach, 706 N.W.2d 484 (Minn. 2005) –that have held that even an unusual degree of nervousness has not  provided a reasonable, articulable suspicion of criminal activity to support an expansion of the scope of a routine traffic stop.

Destruction of Blood Exemplar After Defense Demand to Preserve it Supports the Suppression of Evidence of Testing of That Exemplar; Review Pending

State v. Hawkinson, Minn.Ct.App., 3/26/2012, petition for further review GRANTED, 5/30/2012.  In March, 2010, police stopped, then arrested Mr. Hawkinson on suspicion of DWI; he consented to a blood alcohol test, which the police sent to the BCA for testing.  The BCA reported the results – .11 – and told the police that it would destroy the sample after twelve months unless they requested its return.  They didn’t and true to its word the BCA flushed the sample a year later.

Meantime, in June, 2010, counsel for Mr. Hawkinson made a demand to preserve all evidence, including blood tests.  It took a while to get the case to trial so in August, 2011, on the eve of trial, everyone in the court house learned what the BCA already knew:  the sample didn’t exist anymore.  Mr. Hawkinson’s counsel moved to suppress or exclude the evidence of the result of the blood testing on due process, confrontation and discovery violation grounds, which, for all three reasons the trial court granted.  The state appealed.

The court of appeals upholds the trial court on due process grounds, eschewing any comments on the other two grounds.  In doing so, the court rejects the state’s argument that Mr. Hawkinson had to show that the destruction had been in bad faith.  The court of appeals says that had the destruction occurred either in compliance with some standard practice or in accordance with state or federal regulations bad faith might be a requirement.  Here, the state made no such showing of either a practice or a regulatory requirement. 

The supreme court has granted review.

Defense Counsel’s Past Representation of Key State Witness Against Current Client Disqualifies Counsel

State v. Patterson, Minn.S.Ct., 4/25/2012.  A grand jury indicted Mr. Patterson and Leroy Paul on various counts of first degree murder and attempts to do the same.  Mr. Patterson retained Eric Newmark to represent him.  Before trial the state moved to disqualify Mr. Newmark based on alleged actual and potential conflicts of interest arising out of Newmark’s past representation of Mr. Paul and three of the state’s prospective witnesses.  The trial court granted that motion even after Mr. Patterson waived his right to conflict-free counsel.  Mr. Patterson got another lawyer, went to trial, got convicted of a lesser degree of homicide and appealed.

Here are the simplified facts.  Mr. Patterson and Mr. Paul were in one car chasing another car occupied by Mr. Artison and an unnamed passenger.  Yet a third car, driven by Mr. Wilson, was trailing these two cars.  Patterson was shooting at Artison’s car, successfully as it turned out; Mr. Artison died at the hospital.  The state maintained that this was all payback from when Mr. Paul shot and killed a Mr. Williamson, for which Mr. Artison, while he was still alive, tried to shoot Mr. Paul.  And so on.  All having to do with gangs.

The state wanted to tie all these pieces together during Mr. Patterson’s trial with three witnesses - Wilson, Herron, and Richardson - from the Williamson murder.  Mr. Newmark had represented all three of these guys, (as well as Mr. Paul). 

The rules for determining whether a conflict exists such that a defendant’s counsel of choice may be disqualified were stated in Wheat v. United States, 486 U.S. 153 (1988:

The District Court must recognize a presumption in favor of petitioner’s counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict. The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court.

Wilson:  Newmark had represented Wilson on several state drug charges, one of which went federal.  Before the feds got it, he and Newmark reviewed police reports and had privileged communications about the underlying facts of the charge.  Over in federal court, with a different lawyer, Wilson agreed to cooperate in Paterson’s trial.  To defend Patterson, Mr. Newmark would need to discredit Mr. Wilson; Mr. Newmark had information about Wilson that would be relevant to this cross examination; moreover, if Newmark took Wilson apart on the stand the feds might reconsider its plea agreement.  If, on the other hand, Mr. Newmark pulled his punches on cross examination, then he’s harming Mr. Patterson’s interests.

Here’s how the supreme court summed up:

Here, in defending Patterson, Newmark would have needed to mount a strong challenge to Wilson’s credibility on cross-examination given Wilson’s expected testimony explaining the circumstances that led to Artison’s shooting and his expected testimony that he saw Patterson shoot Artison. That need to effectively cross-examine Wilson, coupled with information Newmark would normally have obtained during his past representation of Wilson, created a substantial risk that confidential information would materially advance Patterson’s defense. Given how we define a “substantially related matter,” Newmark’s previous representation of Wilson was substantially related to his representation of Patterson. Moreover, Patterson’s interests in his case were materially adverse to Wilson’s interests in Patterson’s case. Further, Newmark’s past representation of Wilson materially limited Newmark’s representation of Patterson because of the limits placed on Newmark’s ability to effectively cross-examine Wilson. Newmark’s representation of Patterson would have, of necessity, raised ethical questions implicating Rules 1.7(a)(2) and 1.9 of our Rules of Professional Conduct. And Newmark’s past representation of Wilson would have made it difficult for Newmark to effectively cross-examine Wilson on Patterson’s behalf, thereby calling into question the fairness of Patterson’s trial. As a result, we conclude that the trial court did not abuse its discretion when it granted the State’s motion to disqualify Newmark from representing Patterson based on Newmark’s previous representation of Wilson.

Having upheld the disqualification based on Wilson, the court didn’t have to weigh in on either the other two witnesses or Mr. Paul.

Revisor’s Notes are Just That and Have No Force of Law; Buckle Up.

State v. Wendorf, Minn.Ct.App., 5/19/2012.  Minnesota has a statute that says “wear your seatbelt.”  Minn.Stat. 169.686, subd. 1(a).  An officer stopped Mr. Wendorf back in May, 2010 only because he was not wearing a seatbelt.  Mr. Wendorf made challenges to this statute:  first, the statute prohibited an officer from stopping a motorist solely for a seat belt violation; and second,the statute, as published by the Revisor of Statutes, failed to provide notice that a motorist could be cited under this statute absent another moving violation.

Before 2009, officers could not stop a motorist for a seat belt violation unless there was another violation along with it.  The 2009 legislative session thought it had eliminated this prohibition and authorized officers to stop motorists just for seal belt violations.  There was nothing pretty, however, about how they went about it.  This, in turn, created a lot of busy work for the courts and lawyers.

The 2009 legislative session made three successive changes to the aforementioned statute.  The first change eliminated  the prohibition of stopping a motorist solely for a seat belt violation.  The second change mooted the first change by deleting the sentence that the first change had amended, but again removed the prohibition.  The third change was identical to the second change but then included additional stuff that had nothing to do with the prohibition.  When all this hit the Revisor’s desk, they published the last revision to the statute – the third change - but added a note that mentioned and printed the language from the first change; this included, in italics, the very prohibition that seemingly had been repealed not once but twice and perhaps three times.

Here’s how the court summed up this mess:

Here, the earlier and later amendments are irreconcilable because [the first change]retained the restrictive-citation provision and [the third change] repealed it and also deleted the language [the first change] amended.

Plain and simple, a Revisor’s note is not “the law.”  The last passed legislation on the elimination of the prohibition is “the law” so  the officer could stop Mr. Wendorf solely for the seat belt violation.

The court rejects Mr. Wendorf’s various due process challenges to this statutory entanglement. 

Defendant Reinitiated Police Questioning After Invoking Right to Counsel; Subsequent Admissions Admissible

State v. Ortega, Sr.,, Minn.S.Ct., 4/18/2012.  A jury convicted Mr. Ortega of aiding and abetting first degree premeditated murder.  What began as a neighborhood beer party ended in a knife fight.

Police officers arrested Mr. Ortega.  Two BCA agents went over to interrogate him, but even before the agents could read a Miranda warning to him, Mr. Ortega said, “[w]ell then I’m not gonna say nothin’ I just want to have an attorney present if you’re gonna question me.”  The agents left.

The local deputy investigator, Investigator Gunderson, however, came back later that day and took another run at Mr. Ortega.  The investigator said at the suppression hearing that all he’d done was go into the interview room where Mr. Ortega was being held in order to talk to another deputy about taking Mr. Ortega to the jail.  The next he knew, Mr. Ortega was showing Gunderson his head injuries and one thing lead to another and Mr. Ortega confessed.  Mr. Ortega, on the other hand, said that Gunderson had briefly come into the interview room while the BCA agents were there and then left.  Mr. Ortega said that the agents then threatened him and then they left.  Gunderson then returned and one thing lead to another and he confessed.

Even so, Mr.Ortega would not tell Gunderson the whereabouts of the murder weapon.  When Gunderson pressed him about it, Mr. Ortega said he’d have to talk to an attorney about that first.  Gunderson changed the subject and kept on interrogating Mr. Ortega about other aspects of the murder.

Mr. Ortega complained that it was the officers who re initiated questioning of him after he invoked his right to counsel at the beginning of the interrogation.  The court concluded, unfortunately for Mr. Ortega, on the basis of two statements that Mr. Ortega made that it was he who re initiated questioning.  First, he asked Gunderson to look at his head wound.  Now, true enough, this is more like a question about the custodial relationship – the question suggests that Mr. Ortega believes that he needs a doctor – that is not re initiating of questioning.  State v. Staats, 658 N.W.2d 207 (Minn 2003).  But, forget about that question because the second thing that Mr. Ortega said was to ask to speak to Gunderson.  That looks for all the world like a “willingness and desire for a generalized discussion about the investigation.”  Oregon v. Bradshaw, 462 U.S. 1039 (1983) (plurality opinion).  That’s Mr. Ortega asking for a redo of the interrogation.  Because Mr. Ortega conceded that he validly waived his right to counsel his admissions that followed were properly presented to the jury.

Mr. Ortega also complained that he again invoked counsel when he said he needed to speak to a lawyer before disclosing the whereabouts of the knife.  The court dispenses with this claim in short order, concluding that the continuation of the interrogation (a) sought only to clarify just what kind of invocation Mr. Ortega was making, and (b) didn’t talk about the knife anyway.

Mr. Ortega’s defense at trial was self defense.  During jury selection, the prosecutor asked potential jurors, “[d]o you think there is anything more valuable than human life?”  Mr. Ortega objected, saying that it was not a question designed to elicit useful information on which to exercise a peremptory challenge, but was a back handed slam at his self defense claim.  That went no where, and eventually both sides were asking the question. 

So, the supreme court ducks the issue whether this was poor form or not, concluding that even if it were poor form the questioning did not for three reasons affect the outcome of the case.  First, in a self defense case, the question may even have helped Mr. Ortega.  Second, the trial court told the jury what the elements of the offenses were, including self defense.  Third, the prosecutor never argued that the jury should reject Mr. Ortega’s self defense claim because there were no circumstances that justified the taking of a life.