Motion For Post Conviction DNA Testing Fails to Establish Sufficient Chain of Custody to Authorize Testing

Wayne v. State, Minn.S.Ct., 6/12/2013.  Mr. Wayne is serving a life sentence for the murder of Mona Armendariz, which occurred back in 1986.  In February, 2012, Mr. Wayne filed a motion to  have Armendariz’s underwear tested for DNA.  He made this motion under Minn.Stat. 590.01, subd. 1a, which authorizes such testing under delineated  circumstances.  One of the requirements that must be shown is that the evidence sought to be tested  has been subject to a chain of custody sufficient to establish that it hasn’t been messed with.  Mr. Wayne admitted in his pleading that he didn’t even know if the underwear still existed.

This was enough for Justice Page to say that the request was properly denied.  Justice Page went on, however, much to the annoyance of Justice Stras, to say that Mr. Wayne had also not established that such testing was materially relevant to his assertion of actual innocence, which is another requirement for testing.  And, again to Justice Stas’s annoyance, Justice Page also said that if, as the trial court had done, the court treated the 1a motion as a full blown petition it was untimely and did not meet any of the limitations exceptions.

Justice Stras concurred in the result only.  He would have stopped with the first conclusion, lack of proof of an adequate chain of custody.  He then hinted that he thinks that a 1a motion is subject to the two year limitations period.

The new justice, Justice Lillehaug, did not participate in the decision.

Justice Paul Anderson Court Festival

6/11/2013:  Until yesterday I had believed that I had posted this announcement about the multitude of opinions that came out of the Supreme Court on Justice Paul Anderson's last day on the court.  Here's what I wrote (and some may have actually seen if you have a blog feed of some sort).

5/31/2013:

Justice Paul Anderson’s last day on the court was this past Friday.  There were a slew of opinions.  It seemed, though, that the remaining justices were more keen on showing Justice Anderson the door rather than bidding him a fond farewell.  The opinions in which the Justice was not in the majority excoriated him in lengthy footnotes.  Justice Anderson gave as good as he got. Anyway, it may take a few more days to work through the five criminal opinions.

Miller v. Alabama Not Retroactive in Minnesota

Chambers v. State, Minn.S.Ct., 5/31/2013.  Justice Dietzen, in a 5-2 opinion, holds that Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012), does not apply retroactively in Minnesota.  Mr. Chambers, whom I’ve represented on and off – including the filing of this post conviction petition – since the day after the crash is serving a life without possibility of release for a homicide committed when he was a juvenile.  Miller held that a mandatory life without possibility of release for a juvenile homicide offender violates the Eighth Amendment. 

Justices Page and Paul Anderson dissented.  Ultimately, SCOTUS will have to answer the question whether Miller is retroactive.

ADDENDUM:  Some of the postings/links got messed up in the flurry of the last Opinions from Justice Paul Anderson.  This one among them.  Here's what I had written the first time I posted about this case:

In a 5-2 Opinion, Justice Dietzen announces that the rule of Miller v. Alabama,  does not apply retroactively in Minnesota.  Miller announced last year that a mandatory sentence for a juvenile who has been convicted of a homicide of life without possibility of release violates the Eighth Amendment. 

A jury convicted Tim Chambers of first degree homicide back in the late ‘90’s.  At sentencing, his trial attorney – me – argued that a mandatory sentence of life with possibility of release violated the Eighth Amendment (and the companion state constitutional provision).  The trial court disagreed, and the Minnesota Supreme Court upheld the life without parole sentence on direct appeal, rejecting my continued argument to the contrary. 

Justices Paul Anderson and Page dissented.  Here’s part of the introduction to Justice Anderson’s dissent:

I cannot understand, much less appreciate, why the majority is so drawn to the continued imposition of a cruel and unusual punishment. The majority consciously avoids the clear and principled lines of legal analysis available to it to remand this case to the postconviction court. The postconviction court should be allowed to fix the constitutionally defective portion of Chamber’s sentence—its mandatory nature—and to resentence Chambers in accordance with his constitutional rights as articulated by the Supreme Court in Miller.

There is No Remedy For Prison Sending Detainer Request to Incorrect Prosecutor; and Incorrect Prosecutor Has No Obligation Either to Send Detainer Request to Correct Prosecutor or Return It to The Prison

Resendiz v. State, Minn.Ct.App., 6/10/2013.  While Mr. Resendiz was serving an unrelated prison sentence, the Hennepin County Attorney’s Office charged  him with first degree assault.  Mr. Resendiz requested final disposition of the assault charge by completing the requisite form, on which he correctly identified the Hennepin County Attorney as the prosecutor.  The prison, however, sent the request to the Minneapolis City Attorney’s Office, who ignored it.  Eight months later the Hennepin County Attorney learned of the request.

Mr. Resendiz then came to court and pled guilty, receiving a concurrent sentence.  Later, he filed this post conviction petition saying that his trial attorney provided ineffective assistance of counsel by not asserting his rights under the detainer statute.  The post conviction court denied the petition, saying that the prison was negligent at most and that the city attorney’s office hadn’t violated any affirmative duty to forward the request through the tunnel from City Hall up to the County Attorney’s Office in the government center.

The court of appeals concludes that sending the request to the wrong prosecutor was good enough for government work.  This is because the detainer statute provides for no remedy for this cock up.  Rather, the statue provides a remedy in only two instances:  when the prisoner is not brought to trial within six months after the court and the (correct) prosecutor receive the request; and when the prison fails tell the inmate about the new charge and his right to request final disposition.

Now, over at the city attorney’s office, the court says that they can ignore the request on the form asking that if the form had not got to the correct prosecutor would you please designate the proper agency on the form and send it back to the prison.  They can ignore this because there is nothing in the detainer statute that imposes this onerous burden upon them.  They can hang on to one of their forever first class stamps.

So, since no one – Mr. Resendiz, the prison, the county attorney, the city attorney – did anything wrong, counsel could not have been ineffective for not raising the detainer statute.  Way to step up everybody.

Sentence That’s Greater Than Terms of Plea Agreement is not Knowing and Voluntary

Uselman v. State, Minn.Ct.App., 6/10/2013.  Mr. Uselman is a resident at the Moose Lake Treatment Center.  He pled guilty to assaulting one of the program staff.  The plea agreement stated that his sentence would not include a mandatory five year conditional release term.  The boilerplate on the plea petition included this handwritten declaration:  “In this case the period of conditional release is N/A years.”  At sentencing, however, the court, with apparent defense counsel acquiescence, imposed the conditional release term.

Well, this recitation in the plea agreement is incorrect  under the law because this conditional release term can’t be waived.  Mr. Uselman ultimately timely filed a post conviction petition seeking to withdraw his guilty plea.  The court of appeals agrees with his argument that his plea was not knowing and voluntary because the plea agreement rested upon a promise that the state could not fulfill.  Further, the trial court had a duty to inform Mr. Uselman that it intended to impose a sentence greater than the parties’ agreement and permit him to withdraw the plea.

The post conviction court had thought that Mr. Uselman’s knowledge of the conditional release term could be inferred.  The court of appeals couldn’t get past just how that’s possible in the face of an express provision in the plea petition to the contrary.  Moreover, the state admitted that the guilty plea occurred under the terms of that plea agreement.

Mr. Uselman gets to withdraw his guilty plea if that’s what he wants to do.

Supreme Court: No Opinions

6/5/2013:  No published criminal opinions today.

Potential Juror’s Repudiation of “Mental Illness” Defense, Rather than the “M’Naghten” Defense Does Not Express Actual Bias To Support Removal For Cause

State v. Munt, Minn.S.Ct., 5/31/2013.  A jury convicted Mr. Munt of four counts of first degree murder and various sundry other crimes, all arising out of the shooting death of his ex-wife Svetlana and the kidnapping of their three children.  Mr. Munt pled not guilty by reason of mental illness.

During jury selection, the prosecutor inquired of a prospective juror about her views on mental illness:

Q: I just want your opinion; what —in general what do you think if somebody comes into court and says, yeah I did it but I am mentally ill and—you know—I am really not responsible for what I did, what’s—what’s your thought on that?

A: My personal opinion about it [is] if you confess then you are aware that you did [it], so basically mental illness or not you are [aware] of what you did so you should be held responsible.

Mr. Munt believed that this answer expressed actual bias against his mental illness defense such that this potential juror should be struck for cause.  Justice Dietzen, writing for four members of the court with Justices Wright, Page and Paul Anderson dissenting on this issue, thought otherwise.  The justice came up with a couple of reasons to support this conclusion.  First, the potential juror, being unversed in the law, could not possibly have been expressing a bias against the M’Naghten standard since she knew nothing about it.  The trial court had not yet explained it.  Whatever she was rejecting it wasn’t that.  Justice Dietzen supports this assertion by hauling out Justice Stras’s dictionary to recite the “ordinary” definition of “mental illness,” and then contrasting that with the M’Naghten definition.

Second, she’d already told the trial judge that she could follow the court’s instructions.  So, when you looked at her entire set of answers, Mr. Munt had not shown actual bias.

Just before closing arguments the trial judge gave the jury some scheduling information.  Essentially his comments rather strongly suggested that there would be a second phase of the case – the mental illness defense – following deliberations on guilt/innocence.  He told them that they would be taking the upcoming Friday off and then returning for the next phase on Monday.  The trial judge also told the alternative jurors as he dismissed them that they did not have to return for the mental illness phase of the trial.  Mr. Munt thought that the judge was signaling the jury what verdict to return on guilt/innocence and thereby displayed bias.  The court rejects this argument, essentially editing the judge’s comments to soften the blow of what he really said.  Justice Dietzen also  pulled out the boilerplate where the judge tells the jury that nothing he’s said or done during the trial was intended to express an opinion on the facts or outcome.

Next, Mr. Munt complained that the trial court had wrongly denied his request to present surrebuttal testimony.  Rather than addressing the issue the court took its usual way out on this by assuming that the denial was wrong, then concluding that it was harmless beyond a reasonable doubt.

Mr. Munt wanted to present testimony from his nine year old daughter but the trial court determined that she was not competent to testify.  The nine year old initially refused to leave her foster home to come to court, saying that  the was afraid of Mr. Munt, men, and specifically the judge (a man).  It took three adults to convince the nine year old to enter the courthouse, and even then she refused to speak with the judge.  The trial judge concluded that since he could not assess the nine year old’s ability to relate events truthfully he had to find her incompetent to testify.

A child under the age of ten is presumed competent to testify unless the judge finds that the child lacks “the capacity to remember or to relate truthfully facts respecting which the child is examined.”  Minn.Stat. 595.02, subd. 1.  While the refusal to appear in court does not, by itself, render a witness incompetent to testify, in this case the nine year old was incapable of relating any facts at trial. 

Mr. Munt complained at various points about the adequacy of his appointed counsel and requested substitute counsel be appointed.  The court said that Mr. Munt had not established the “significant circumstances” that would warrant further inquiry into his complaints or the appointment of substitute counsel.  State v. Worthy, 583 N.W.2d 270 (Minn. 1998).

Justice Wright, joined by Justices Page and Paul Anderson, dissented on the actual bias determination.  The dissent concluded that the majority was being hyper-technical and that everyone in the courtroom knew what was being discussed with this potential juror.  The dissent concluded that actual bias had been demonstrated and they would have reversed and remanded for a new trial on the mental illness defense.

Court of Appeals: No Published Criminal Opinions.

6/3/2013:  No published criminal court of appeals opinions today.

Evidence Sufficient to Support First Degree Murder/Pattern of Past Domestic Abuse

State v. Hayes, Minn.S.Ct., 5/31/2013.  A jury convicted Mr. Hayes of first degree murder while committing domestic abuse with a past pattern of domestic abuse, for the death of his girlfriend’s 13 month old son, Robert Azure, Jr.  Mr. Hayes complained about the sufficiency of the state’s evidence; and on appeal he complained that the jury should have been instructed that a past pattern of domestic abuse required proof beyond a reasonable doubt of at least two prior acts of abuse and that the jury needed to agree unanimously on which two specific acts of past abuse were proven. 

The number of prior acts of abuse were between four and twenty, depending on who was counting.  Mr. Hayes wanted to distinguish prior acts of abuse against his adult romantic partner from acts against the kids.  Justice G. Barry Anderson, writing for the majority, declines to adopt such a distinction and concludes that the state’s evidence of a past pattern of domestic abuse sufficed to support the conviction.

Turing to the jury instructions, reviewed for plain error, the court said that it had already rejected the claim that there must be at least two separate incidents of domestic abuse when it decided State v. Hokanson, 821 N.W.2d 340 (Minn. 2012).  On his unanimity assertion, again, the court answered that question in State v. Crowsbreast, 629 N.W.2d 433 (Minn. 2001).

Justice Stras concurred in the result, but did a short riff on his sufficiency standard of review concerns.  See State v. Silvernail. 

Justice Paul Anderson dissented, joined by Justice Page.  He thought that the testimony of the medical examiner came close to, if not actually invading the province of the jury to decide the facts.  He also expressed his fears that juries are too easily flummoxed by expert testimony, in this case, the state medical examiner, all the more so when the prosecutor’s closing argument gets a bit carried away. 

Closing Courtroom Doors During Closing Arguments is (Again) “Too Trivial” to Implicate Right to Public Trial.

State v. Silvernail, Minn.S.Ct., 5/31/2013.  A jury convicted Mr. Silvernail of first degree premeditated murder.  He argued on appeal that the state failed to prove that he murdered the victim, Lori Roberts.  He also argued that the trial court committed reversible error by locking the courtroom doors before the state began its closing argument.

Justice Page concluded that the state’s evidence was sufficient to uphold the conviction.  There were no witnesses to the murder so that made the state’s case circumstantial.  However, the police did discover blood from the victim on Mr. Silvernail’s clothes, and two jail house snitches claimed that Mr. Silvernail confessed to them, both of which are direct evidence of his commission of the crime.  The court ducked the legal question of what standard of review applied when the state’s proof was both direct and circumstantial by saying that even under the more favorable circumstantial evidence standard the state’s proof was enough. 

Justice Stras, concurring and joined by Justice Dietzen, calls out the majority for not doing the heavy lifting on the sufficiency of evidence standard.  He opines that the circumstantial evidence standard never should apply to the court’s review of an element of a criminal offense that the state has proven by direct evidence.  Ever the grammarian, Justice Stras would parse the proof into the appropriate offense element.  Elements proven by direct evidence are reviewed under “the traditional standard” an elements proven by circumstantial evidence are reviewed under the Ortega two step.  State v. Ortega, 813 N.W.2d 86 (Minn. 2012). 

On the courtroom closure question, the court said that this closure was “too trivial” to violate Mr. Silvernail’s right to a public trial.  See State v Lindsey, 632 N.W.2d 652 (Minn. 2001); State v. Brown, 815 N.W.2d 609 (Minn. 2012). 

Justice Paul Anderson dissented on closing the courtroom doors.  On his own way out the door, Justice Anderson would have remanded the case back for a new trial.  The U.S. Supreme Court declared in Waller v. Georgia, 467 U.S. 39 (1984) what has to be established in order to shut the courtroom doors: an overriding interest (to the party seeking closure) likely to be prejudiced; closure must be no broader that necessary to protect that overriding interest asserted; the court must consider reasonable alternatives; and the court must make adequate findings to support the closure.  The Justice says not one of these factors was met here.  Justice Anderson also drops in a footnote that lists the spate of denied petitions for review which raised an issue about courtroom closure. 

Murder Conviction Upheld Over Fourth Amendment And Evidentiary Ruling Challenges.

State v. Zornes, Minn.S.Ct., 5/31/2013.  A jury convicted Mr. Zornes of two counts of first degree premeditated murder.  There was an arson conviction in there somewhere as well.  Once Mr. Zornes became a suspect and the police knew where he was, they arrested him out in the woods at his campsite.  In a pat down search of Mr. Zornes, the police found a folding knife.  Strewn about the campsite, they found a hammer, a screwdriver, a utility knife and a scissors.  At the police station, Mr. Zornes invoked his right to remain silent.  In the course of “processing” Mr. Zornes – looking for injuries, taking photos and the like – the officers told him that they were going to use a sexual assault kit to take DNA samples from him.  Mr. Zornes grumbled about this, remarking “this wasn’t anything sexual” or “it wasn’t sexual related.”  Several hours later, the cops got a search warrant for the DNA collection.

Mr. Zornes moved to suppress the evidence obtained from him during the campsite arrest and search; to suppress the results of the DNA testing at the police station; and to suppress the “this wasn’t anything sexual” statement.  Mr. Zornes argued that the stuff seized at the campsite was not sufficiently connected to the crime scene and were thus not relevant.  The trial court allowed the introduction of these things, concluding that what to make of them was the jury’s job not his.  The supreme court agreed, saying that admission of these items had not been an abuse of discretion.

The trial court threw out the DNA testing, saying there was no reason not to have first got the warrant that they got three or so hours afterwards.  No one took issue with that on appeal.  But, the trial judge admitted the statement, saying that Mr. Zornes had made the statement before the cops physically touched him to get the DNA exemplar so the statement had not been the result of the unlawful search to acquire the DNA exemplar.  Justice Paul Anderson, writing for the Court, said that the court didn’t have to decide any of this because any error in admitting the statement was harmless beyond a reasonable doubt. 

During jury selection, the trial court asked two persons, both on a combined witness list, to leave the court room, although one of them was allowed to watch from an observation room.  Mr. Zornes complained about this on appeal, saying that the trial court had deprived him of his right to a public trial.  because jury selection is part of the trial process, a trial judge has substntial discretion whether to exclude a potential witness from the court room.  As to the fellow in the observation room, the state agreed to remove him from the witness list so at that point he became “the general public.”  Under the factors identified in State v. Lindsey, 632 N.W.2d. 652 (Minn. 2001), the court concluded that this second individual, excluded from the court room to observation room, was too trivial an exclusion to implicate Mr. Zorne’s Sixth Amendment right to a public trial.

Finally, the court upheld the trial court’s ruling on impeachment of Mr. Zornes by use of prior convictions, under the Jones factors.

Because Defendant Alleged Sufficient Facts to Warrant Evidentiary Hearing, the Post Conviction court Abused its Discretion When it Denied the Petition Without a Hearing

State v. Nicks, Minn.S.Ct., 5/31/2013.  A jury convicted Mr. Nicks of the first degree murder of Johanna Hollis, and of the attempted first degree murder of her daughter, A.R.  The state’s case turned in large part on certain cell phone records that indicated that Mr. Nicks was in the vicinity of the shooting, and supported the claim made by two witnesses that Mr. Nicks had made threats to Hollis on the night of the murder.  These records show that he placed two calls to Hollis’s cell phone, but Mr. Nicks insisted that these calls went to voicemail, that he did not speak with Hollis that night, and that there were no threatening calls between Hollis and him.  Trial counsel sought the Hollis cell phone records but it does not appear that counsel got them.

Appellate counsel had a forensic expert examine Hollis’s cell phone.  This examination, Nicks alleged in his post conviction petition, revealed that Hollis could not have received the alleged threatening phone calls from Nick’s phone.  The post conviction court denied Nick’s petition without a hearing upon receipt of this information.  Mr. Nicks appeals directly from the trial and from the denial of post conviction relief, primarily asserting that trial counsel provided ineffective assistance as a result of not getting the cell phone records and conducting a forensic exam of Hollis’s phone.

Justice Paul Anderson concludes that Mr. Nicks is entitled to an evidentiary hearing on his ineffectiveness claim.  Obtaining Hollis’s cell phone records, rather than being a course of action that counsel considered and rejected, was a central part of his theory of the case and his strategy at trial.  It was hardly a “strategy” that remains unreviewable under Strickland.  When counsel fails to conduct a thorough investigation of facts that are so directly related to the theory of the case, that conduct falls below an objective standard of professional conduct that defendant’s are entitled to under the constitution.  Regardless whether counsel’s performance actually fell below this standard is not the question when deciding whether to grant an evidentiary hearing; rather, the question is whether the allegations conclusively fail to show such a fall.   

Chief Justice Gildea and Justice Dietzen dissented.

The permanent links to Friday’s opinions are not up yet; check back in a day or two.

No Supreme Court Published Criminal Opinions Today

5/29/2013.  No published criminal opinions today from the supreme court.

No Published Criminal Opinions

5/28/2013.  No published criminal opinions today.

Expungment of Juvenile Records Held by Executive Branch is Limited to the Order of Expungment

In the matter of the Welfare of J.J.P., Minn.S.Ct., 5/22/2013.  This is a companion case to that of M.D.T., the adult expungment opinion.  The focus here is expungment of juvenile records.  J.J.P. petitioned the district court to expunge his executive branch records under the juvenile code’s expungment provision, Minn.Stat. 260B.198, subd. 6.  The district court denied the petition but the court of appeals reversed.  The court of appeals said that this statute created broad authority to expunge all juvenile delinquency records held by executive branch agencies, and that rather than the balancing test contained in chapter 609A the guidelines in the delinquency rules which address the imposition of a disposition in a delinquency case applied.

Justice Dietzen concludes that this juvenile statute authorizes the court only to expunge executive branch records of the order adjudicating the juvenile delinquent.  This statute says:

Except when legal custody is transferred under the provisions of subdivision 1, clause (4), the court may expunge the adjudication of delinquency at any time that it deems advisable.

There are a lot of statutes that pertain to the creation, maintenance, distribution and destruction of juvenile records among the judicial and executive branches of government, and there are a lot of different “records” that go into the pile.  Only one among these many different “records” is the actual order adjudicating a juvenile delinquent.  So, borrowing Justice Stras’s dictionary, Justice Dietzen tells us what the definition of “adjudication” is.  He employs as narrow a definition as can be – the actual order of adjudication.  In doing so, the court authorizes executive branch agencies to keep all of the paperwork in the run up to that actual order.  Things like the juvenile petition, motions, arrest history, on and on, can stay in the file cabinet. 

J.J.P. wanted this expungment so that the Department of Human Services could not disqualify him from direct patient contact, thereby preventing him from becoming a paramedic.  The court says that expungment of the order of delinquency accomplishes this goal because DHS must have that order in order to disqualify.  The concurrence by Justice Paul Anderson in which Justice Page joins  – takes issue with this rosy picture.  And, points out that if the order of adjudication is expunged then all these executive branches have no statutory authority to keep any of the file.  The concurrence also proclaims that the juvenile expungment provision empowers actions to seal records more expansive than just the order, and that limiting expungment to the order of adjudication is an illusory remedy.  Justice Wright concurred in that particular conclusion about the scope of the expungment authority.

The court then turns to the phrase “deems advisable.”  The court rejects both approaches from the lower courts:  Chapter 609A balancing criteria, and juvenile disposition rules.  Instead, the court adopts the different balancing test in exercising a court’s inherent authority to expunge records.

Minnesota Supreme Court Trades Barbs Over the "Answer to the Ultimate Question of Life, the Universe, and Everything."

State v. M.D.T., Minn.S.Ct., 5/22/2013.  You wouldn’t think that an expungment opinion could generate such a fuss and be such a good read.  But you’d be wrong.  Poor Ms. M.D.T. made a one-off mistake:  she forged a pain medication prescription because she didn’t think the prescribed dosage was up to the task.  She got charged and convicted of aggravated forgery.  Years ago.  Stay of Imposition of sentence.  Successful probation.  She rebuilt her life within the limitations of that conviction, but that conviction was nonetheless holding  her back.  

So, she asked the court to expunge her records – all of them, including records that the courts created but happened to be living in various executive branch offices. The first time the court said, no.  She waited a few years, asked again.  This time, the trial court granted that request and the court of appeals affirmed. Read about that here.  That opinion seemed destined for a bad reception in the supreme court.  And, with the exception of Justices Paul Anderson and Page that’s what it got.

Chief Justice Gildea, in a 4-3 opinion, reverses, concluding that the court has no authority to order the expungment of records either created by the executive branch and residing therein, or created by the judicial branch, copies of which reside within an executive branch filing cabinet.  The majority opinion is mean spirited and extraordinarily narrow-minded.  The real fireworks, however, are in the concurrence by Justice Stras, and the dissent from Justices Paul Anderson and Page. 

Justice Stras confirms his true colors as a Scalia “originalist” saying that the state’s judicial power must be understood by looking to the territorial courts in existence at the time of statehood and ratification of a state constitution. The business of those territorial courts was to “decide cases.”  That’s it.   He debunks the entire construct of  “inherent [judicial] authority” as a ruse that means only what a majority of the court happens to think it means.  In doing so, he takes a swipe at the court’s recent use of that “ethereal” doctrine in deciding  Obeta II, (overruling Saldana) and at the court’s taxation of lawyers to fund the public defender system.

Justice Paul Anderson, nearing retirement, pens a compelling, compassionate dissent, in which Justice Page joins.  Here’ the best paragraph:

I begin my analysis by reiterating some of the key facts underlying M.D.T.’s second petition for expungement. I begin this way because if this case is to be properly understood, M.D.T.’s story must be told. Her story is a cautionary tale about how important it is to know and follow the law. It is a tale about how an ordinary citizen who commits an act that is both foolish and criminal endures the consequences that flow from that act. It is also about how the executive exercises its power to prosecute a criminal act. But most importantly, it is a tale about how a citizen searches for redemption and attempts to move on with her life after having paid her debt to society for a criminal act. In many ways, M.D.T.’s story also reflects who we are as a society—our concept of justice, how we punish, our ability to forgive, and even our willingness to forgive. Finally, M.D.T.’s story, ending with the result reached by our court today, illustrates how those of us who inhabit Minnesota’s judiciary differ in our understanding of what constitutes a core function of the judiciary, how the judiciary is empowered to use its authority to perform a core function, and, more broadly, the role the judiciary plays in our scheme of government under the Minnesota Constitution.

Well said, Paul.  Can’t go out any better than that.  Six of the judges who looked at this file, this individual, thought the records should be expunged.  Only five thought otherwise.

Fleeing a Police Officer By Means Other than a Vehicle is Specific Intent Crime

State v. Wilson, Minn.S.Ct., 5/22/2013.  This comes up from the court of appeals.  Read about that here.  A jury had convicted Ms. Wilson of misdemeanor attempting to evade or elude a police officer by some means other than fleeing in a motor vehicle.  She wanted an intoxication instruction because she maintained that this crime was a specific intent offense.  Both the trial court and the court of appeals said, no, that the language, “for the purpose of” did not make the crime a specific intent crime. 

Justice Wright, with Justices Paul Anderson and Page dissenting in part, sides with Ms. Wilson.  The court concludes that the plain language of the statute creates a specific intent crime.  “For the purpose of” means the same thing as “with the intent to.”  (Only lawyers would argue about this.)  “Purpose,” the court says, is synonymous with “intention;” and the phrase “in order to” is synonymous with the phrase “for the purpose of.”  The statue in play here requires proof that Ms. Wilson attempted to evade or elude a peace officer for the purpose of avoiding arrest, etc.  That’s a specific intent requirement. 

The court goes on to address how the trial court is to decide whether a defendant, charged with a specific intent crime, is entitled to a jury instruction on voluntary intoxication.  The court states that the offer of proof from the defendant must be viewed in the light most favorable to that defendant, something it’s apparently not said before this.  The court then reviews Ms. Wilson’s offer of proof.  That she had been drinking at a bar, that she smelled  like she had been consuming alcohol and that she was intoxicated would not have been enough.  However, the remainder of her proof about being very confused, having a different look on her face, etc.,  met the requisite burden.  So, she was entitled to the instruction.

Not having got it, however, was harmless beyond a reasonable doubt.  The court concluded that the state had presented more than enough evidence that Ms. Wilson had formed the requisite specific intent.  Justices Paul Anderson and Page disagreed with this conclusion and would have sent the case back for a new trial:

While the jury may have, could have, or might have reached the same verdict it did, I am unable to form a clear and firm conviction beyond a reasonable doubt that the jury would have reached the same verdict if it was properly informed.

Burglary Statute Requires Proof of Knowing Possession of a Gun.

State v. Garcia-Gutierrez, Minn.Ct.App., 5/20/2013.  Mr. Garcia-Gutierrez, along with several others, apparently broke into a home over in Shakopee one evening, stole a bunch of stuff, including a locked safe.  The safe just happened to have a handgun locked inside it.  Later that same evening the guys were seen outside an apartment in Prior Lake repeatedly smashing a “box” to the ground; one of the guys had a handgun.  The state charged each of them with first degree burglary, possession of a dangerous weapon.  The guys said, no, no; we never knew that there was a gun in the safe until later when we smashed the safe open over in Prior Lake.  The state said, it didn’t matter, you take your safe as you find it, including its contents.  The trial judge threw out the charges, saying that none of the guys had knowledge or control of, or immediate access to, the handgun during the commission of the burglary.  The state appealed.

And lost  The burglary statute says, after talking about entering a building, in pertinent part:

the burglar possesses, when entering or at any time while in the building , any of the following:  a dangerous weapon, any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon

That pretty much says it.  The burglar has to possess the handgun, either when entering, or at any time while in, the building.  The statute requires that the state prove that a defendant knowingly possessed a gun during the course of a burglary.  These particular burglars thought that they were stealing a safe.  Hell, once they got it open and discovered not bearer bonds but only the gun, they probably weren’t too happy about it anyway.

Jury Properly Instructed on Doctrine of Transferred Intent.

State v. Bakdash, Minn.Ct.App., 5/20/2013.  Mr. Bakdash was at The Liberty Bar, doing some dope and drinking a lot. When he left, he got into an argument of sorts with either one or two unidentified males according to Mr. Bakdash’s buddy; or with A.E., according to Mr. Bakdash.  Mr. Bakdash then either drove slowly up onto the sidewalk to “scare” either the unidentified male(s) or A.E.; or, he drove pell mell down the sidewalk, nipping (apparently) A.E., killing B.V.H., and injuring S.B. and K.H.  The state charged Mr. Bakdash with a dozen crimes for the death of B.V.H. and the injuries to S.B. and K.H. 

A jury acquitted Mr. Bakdash of first degree murder and attempted first degree murder, but convicted him of the ten other charges.  He argued on appeal that the trial court ought not to have included instructions on transferred intent on the murder and attempted murder charges.  The first and second degree murder statutes require the state to prove that Mr. Bakdash intended to effect the death of a person or “another.”  The “another,” the court says, incorporates the doctrine of transferred intent.  State v. Sutherlin, 396 N.W.2d 238 (Minn. 1986).  Mr. Bakdash said, no, transferred intent does not apply to crimes against unintended victims when those crimes are either different or are of a more serious nature than crimes committed against the intended victim.  Mr. Bakdash said that he only intended to scare A.E., and did not intend to harm the A.E. or anyone else.  The court of appeals said that when the intended harm is the same or substantially similar to the unintended harm then transferred intent applies.  Mr. Bakdash’s use of the car to drive up onto the sidewalk made the car a dangerous weapon.  The jury could, and did, reject his claim that he only intended to scare the unidentified male(s); and could and did conclude that he intended to cause the death of a person.

Mr. Bakdash also argued that submitting transferred intent instructions to the jury was a constructive amendment of the indictment.  He said that the grand jury never knew of A.E.’s existence but, rather, heard evidence of his attempted murder of two victims, and of his first degree murder of the third, all under a theory of direct intent.  The court rejects this argument, essentially saying that Mr. Bakdash had ample notice that transferred intent was a potential issue and thus his rights were not violated.

Finally, Mr. Bakdash complained that the trial court should have ordered the disclosure of the full grand jury transcript.  Rule 18.04 says that the court may order the disclosure of a grand jury transcript to a defendant, “for good cause”.  It’s difficult to tell from the opinion, but it appears that Mr. Bakdash did get a transcript of witness testimony; it was the rest of the transcript that he didn’t get.  The court said that he had not established a particularized need for the rest of the transcript.

Post Conviction Petition Alleging “Newly Discovered Evidence” Fails to Meet Statutory Requirement to Avoid Limitations.

Clifton v. State of Minnesota, Minn.S.Ct., 5/15/2013.  The Minnesota Post Conviction Review Court, formerly known as “The Minnesota Supreme Court,” issued the ninth opinion of the year from a post conviction proceeding.  Chief Justice Gildea, writing for a unanimous court, breaks no new ground in this pro se petition.  Mr. Clifton claimed “newly discovered evidence,” which really wasn’t.  He filed his petition long after the two year limitations expired so he had to meet the requirements of the “newly discovered evidence” exception to the limitations period.  The court concluded that he had not met those requirements.  Mr. Clifton alleged, supported by affidavits, that one of three witnesses who identified him as the shooter in this premeditated murder conviction had recanted his identification.  The problem was, it was really a recantation of the recantation of the earlier recantation.  The jury knew all about this witness’s shaky memory and his vacillating testimony: It’s him!  It’s not him!  Etc.

Supreme Court Oral Argument Schedule For June

Can be found here.  This calendar includes both criminal and civil cases.  The criminal cases have links to the opinion from the court of appeals.

No Published Court of Appeals Criminal Opinions

5/13/2013:  No published criminal opinions from the court of appeals today.

No Published Criminal Opinions from Supreme Court

5/8/2013.  The Supreme Court issued no published criminal opinions today.  The court did accept review of an unpublished court of appeals opinion,  State v. Little, which asks this question:  After a defendant has made a valid waiver of his right to trial by jury must the trial court reexamine the defendant about that waiver when the state amends the Complaint to add a more serious charge? 

Durational Departure Supported By District Court’s Finding of Particular Cruelty

State v. Turrubiates, Jr.,  Minn.Ct.App., 5/6/2013.  Mr. Turrubiates, Jr. appeals from an upward sentencing departure.  The state alleged that Mr. Turrubiates, Jr. caused the death of T.M., age nineteen months.  There were two counts to the Complaint:

Count 1:  Unintentional murder while committing first degree assault; and
Count 2:  Unintentional murder while committing child endangerment.

The state said that there were three factors to support the sentencing departure:  T.M.’s “absolute vulnerability, T.M.’s particular vulnerability fur to her age; and Mr. Turrubiates’s particularly cruel treatment of T.M.  Mr. Turrubiates, Jr., entered a guilty plea to Count 2, and he also agreed to let the trial judge decide the departure motion.  Mr. Turrubiates, Jr., testified during the plea hearing that he was home alone with T.M., playing with her by pulling her around on a rug.  When T.M. fell off the rug, causing a rug burn on her head, Mr. Turrubiates, Jr., kicked a dresser which caused a two hundred pound television to fall off that dresser and land on T.M.’s forehead.  Mr. Turrubiates, Jr., could tell that something was seriously wrong with T.M. but did nothing about except to wait for T.M.’s mother to arrive home.  Even then, he lied to her about T.M.’s condition and tried to hide evidence of the child’s injuries.  The medical examiner provided additional evidence, essentially saying that there were more injuries than were accounted for by Mr. Turrubiates’s statements.  The trial court found all three of the factors that the state articulated and imposed an upward durational sentence of two hundred forty months.

Mr. Turrubiates, Jr., did not dispute either that T.M. was particularly vulnerable due to her age, or that she was absolutely vulnerable.  Rather, his argument was that because her age was an element of the predicate felony age could not be the basis for a departure.  The court of appeals agrees that T.M.’s age is an element of the predicate felony; and agrees that a district court may not base a sentencing departure on an element of the offense.  But that’s as far is the court is willing to go.  The court grabs hold of a malicious punishment case of a four month old, State v. Mohamed, 779 N.W.2d 93 (Minn.Ct.App., 2010), where the court had said:

The age element in the statute does not account for the particular vulnerability of [the four month -old victim], an extremely young victim who, because of his early stage of development, is incapable of perceiving danger, fleeing or shielding himself from harm, seeking help, or reporting the abuse. Indeed, [the victim]’s vulnerability is absolute. He is particularly vulnerable among the broad class of child victims who are covered by the statute.

Mr. Turrubiates, Jr., also argued that the trial court could not rely upon particular cruelty to support the departure.  The court of appeals rejects this argument, saying that a district could can consider the conduct underlying the offense of conviction in determining whether to depart.  Part of that underlying conduct included failing to get help and lying to T.M.’s doctors about the cause of her injuries.  While pointing out that the supreme court has yet to hold that failure to render medical aid, by itself, would support a departure, here, there was more than that.

Post Conviction Claims of Counsel’s Conflict of Interest and Ineffective Assistance are Procedurally Barred.

Sontoya v. State, Minn.S.Ct., 5/1/2013.  The Minnesota Post Conviction Review Court, a/k/a/ Minnesota Supreme Court, issued its eighth opinion of the year from a post conviction proceeding.  A bit over sixty percent of the court’s opinions issued this year have been from the post conviction arena.

A jury convicted Mr. Sontoya of first degree murder while committing first degree criminal sexual conduct.  Read more here.  In this post conviction petition, Mr. Sontoya alleged that when he asked his trial attorney if he was representing a cousin of the victim in an unrelated federal narcotics case his attorney lied by saying, no.  Mr. Sontoya said that he only learned of this lie after his direct appeal, that his trial attorney thus had a conflict of interest, and that this conflict caused his attorney to fail to provide effective representation, a claim that he supported with a long laundry list of counsel’s omissions.

Justice G. Barry Anderson, writing an opinion joined only by four other members of the court, ignores the alleged lie and instead concludes that Mr. Sontoya either knew or should have known about his attorney’s representation of the victim’s cousin, and thus knew or should have known of the conflict.  This conclusion allows the court to invoke the rule of Knaffla that claims about which a defendant knew or should have known must be raised on direct appeal. 

Justice Page concurred in the judgment only.  He also ignored the alleged lie and instead recited Mr. Sontoya’s laundry list of counsel’s omissions.  He then points out that all of these omissions occurred during the trial or during the run up to the trial, and so, obviously Mr. Sontyoa knew and should have known about them.  Again, that makes the claim Knaffla barred.  Justice Page thought that should have been the end of it so that it was unnecessary to examine the conflict of interest claim.

Justice Paul Anderson also concurred only in the judgment.  He looked at the alleged lie and its alleged deceptions and concluded that it was a meritless claim:

[T]here is no merit to Sontoya’s claim that an indirect potential conflict based on a loose familial relation with the victim would be sufficient for a finding of ineffective assistance of counsel.

Justice Paul Anderson thought that should have been the end of it.  It not only isn’t necessary to reach the Knaffla question – if the claim is meritless then it’s not necessary to decide any Knaffla question - addressing it appears to impose a burden on defendants to independently investigate and verify claims made by their trial counsel (or would be trial counsel when the claims are made during the sales pitch).  That’s particularly tough in serious cases where the defendant is mostly likely sitting in a jail cell.