Court Declines To Adopt Per Se Rule That a Victim’s Refusal of Medical Care May Never Be a Superseding Cause of Death

State v. Smith, Minn.S.Ct., 8/14/2013.  This comes up from the court of appeals.  Read here.  A jury convicted Mr. Smith of criminal vehicular homicide for causing the death of a 93-year old, Ms. Schouveller, who was a passenger in the car that Mr. Smith crashed into.  Ms. Schouveller developed multiple complications from her injuries, which necessitated the need for intubation.  However, Ms. Schouveller’s living will prohibited that procedure.  She died about a month after the car crash.

Mr. Smith argued that the “do not resuscitate” order was an superseding cause of Ms. Schouveller’s death, that the trial court had incorrectly instructed the jury on causation, and that the state had presented insufficient evidence to prove causation.  Justice Page, writing for a five member court – Wright and Lillehaug not participating – rejects all of these claims.

Mr. Smith did not object to the causation instruction so the review is for plain error.  Mr. Smith said that the instruction had been correct as far as it went, but the jury should also have been told that a finding of a superseding cause defeated the state’s proof of causation.  Justice Page concludes that additional language was unnecessary so  the instruction was proper. 

The court also rejected Mr. Smith’s sufficiency argument.  The court said that Mr. Smith’s conduct did not need to be the immediate cause of death, only the proximate cause.  It is sufficient if a defendant’s act was “the cause of the cause” of death.

On the intervening cause argument, such an intervening event must be the sole cause of the end result.  State v. Olson, 435 N.W.2d 530 (Minn. 1989).  The court would not adopt the state’s argument that a victim’s refusal of medical care may never be a superseding cause of death.  Rather, this is a question of fact for the jury.  For Mr. Smith, the court concludes that there was sufficient evidence for the jury to find that the do not resuscitate order was not a superseding cause of death.

Trial Court Erred in Denying Appellant’s Motion For Judgment of Acquittal, But Retrial Does Not Violate Double Jeopardy

State v. McCormick, Minn.Ct.App., 8/12/2013.  A jury found Mr. McCormick guilty of second degree manslaughter.  I’ll get to the facts in a minute but it has to do with a deer stand.  The trial court then denied Mr. McCormick’s motion for a judgment of acquittal but granted his mistrial based upon prosecutorial misconduct; the prosecutor elicited statements attributed to the deceased, J.B., even though the trial court had excluded all such statements.  The trial court also said that the state could retry him.  Mr. McCormick appealed the denial of his motion for judgment of acquittal and the double jeopardy claim.

Mr. McCormick discovered a deer stand which he believed, incorrectly,  was on his property.  Mr. McCormick confronted J.B., who was on the deer stand at the time, about getting the deer stand off his property.  During this exchange  the deer stand collapsed.  This was midmorning.  That evening, J.B. was taken by ambulance to the hospital where medical providers discovered that J.B. had a dislocated shoulder, multiple broken ribs, and thoracic spinal fractures.  Almost three weeks later J.B. died from complications from those injuries.

Back to the deer stand.  After the thing collapsed J.B. rode back to his camp on his ATV.  Members of his hunting party said that J.B. was uncharacteristically quite during lunch, his face was flushed; no one, however, saw any signs that he was in pain.  Before lunch, J.B. cleaned his rifle that had  got plugged with mud when the deer stand fell, then test fired it.  After lunch, J.B. went to a different deer stand, although with some difficulty.  Between six and seven that evening, another member of J.B.’s hunting party found J.B. lying in bed still dressed in his hunting gear and boots; he was moaning and groaning, breathing heavily, struggling to breath and in pain.  That’s when the medics were called.

Mr. McCormick made several statements about what had occurred.  The gist of each of his statements was that the deer stand had tipped over as he either climbed or got onto the stand in order to give J.B. what for about the trespass, as well as to give him a business card.  (The cops found the card amidst the collapsed deer stand.)   He also recorded a reenactment of the stand’s collapse, which, again, had the stand tipping over when he tried to give J.B. a business card.  The doctors weighed in on each side about manner and cause of death.  The state’s docs said it was from the injuries from the collapse of the deer stand; the defense doc said, no, it had to be from injuries sustained separately thereafter, between the time that J.B. had gone to the second deer stand and when he was found in bed back at his camp.

Now the lawyers get into it.  What is the correct standard of review?  If the appeal is a challenge to the sufficiency of the evidence to support the jury’s verdict then that verdict enjoys a deferential standard of review.  The reviewing court’s job is to identify all reasonable inferences that can be drawn by the jury from the circumstances proved by the evidence and to determine whether those inferences support any rational hypothesis other than guilt.  State v. Al-Naseer, 788 N.W.2d 469 (Minn. 2010); State v. Anderson, 784 N.W.2d 320 (Minn. 2010).  Here, the court of appeals said that there is no verdict because the trial court’s grant of a mistrial vacated that verdict.  According to the majority, the appeal is from the denial of a motion for judgment of acquittal, review of which presents a question of law, reviewed de novo.  It thus falls to the reviewing court to identify those reasonable inferences that can be drawn from the evidence, and for the reviewing court to determine whether those inferences support any rational hypothesis other than guilt.

In a 2-1 opinion, the court of appeals says that they don’t.  The majority concludes that some inferences that can be drawn are inconsistent with guilt and there is thus a reasonable doubt as to guilt.  The majority also upholds the trial court determination that the state could retry Mr. McCormick.  The dissent would have used the more deferential standard of review and would have upheld the denial of the motion for judgment of acquittal.

Uniform Mandatory Disposition of Detainers Act Not Applicable to Delay in Sentencing.

State v. Brown, Minn.Ct.App., 8/12/2013.  Mr. Brown pled guilty in Ramsey County to criminal sexual conduct in the third degree.  This was back in June 2010; a month later he failed to show up for sentencing.  Four months later, Mr. Brown pled guilty across the river in Hennepin County to simple robbery and got sent to prison.

Ramsey County then filed a detainer that it claimed did not entitle Mr. Brown to request disposition under the uniform Mandatory Disposition of Detainers Act because he had already pled guilty.  From prison Mr. Brown sent a letter to the Ramsey District Court asking that court to execute his sentence on their case and to run it concurrently.  After a while – more than six months – Mr. Brown filed a motion to dismiss the Complaint because he hadn’t been brought in for sentencing within six months.  The trial court denied that motion and imposed a Guidelines sentence.  Mr. Brown appealed the denial of his motion to dismiss.

The uniform act says that an untried indictment or complaint against a prisoner must be “brought to trial” within six months of receipt of the prisoner’s request under the act.  Mr. Brown said that the sentencing hearing was part of the trial and when his sentencing hearing did not occur within the six month window he was entitled to a dismissal of the charges.  The court of appeals disagreed, saying that “trial” only refers to the guilt phase of a criminal case.  So, the uniform act does not provide for the dismissal of a complaint based on a delay in sentencing.

Request to Reduce Length of Sentence Without Merit

Townsend v. State, Minn.S.Ct., 8/7/2013.  In this his fifth petition for post conviction relief Mr. Townsend asked the court to reduce the length of his sentence.  The trial court had sentenced Mr. Townsend to life with possibility of release on a murder one conviction, and then at a subsequent hearing to a consecutive seventy-two months on an attempted murder two conviction.  In this latest court missive, Mr. Townsend asked that the two sentences be ordered to be served concurrently and to switch the jail credits previously given on the seventy-two month sentence to the life sentence.

Mr. Townsend actually filed his papers under Rule 27.03, subd. 9.  The trial court treated the pleading as a post conviction petition and threw it out as time barred.  Justice Dietzen – Lillehaug not participating – ducks the question whether either the statutory time bar under the post conviction statute or the procedural bar under Knaffla apply to a motion under Rule 27.03 by concluding that Mr. Townsend’s request lacks merit. 

Mr. Townsend argued that the consecutive sentences were a departure under the Guidelines that were not supported by sufficient reasons.  The problem with that argument is that the Guidelines, II.F.2 (1992) said that consecutive sentences were not a departure when the crimes were against different persons.  Mr. Townsend’s other argument had to do with application of jail credits.  Jail credits are calculated from the date of arrest to the date of imposition of sentence.  At the time of the sentence of life, Mr. Townsend actually only had 352 days of jail credit.  However, at his attorney’s request, the trial court had given him five hundred ninety-seven days of jail credit – the calculation from date of arrest to date of sentence of the 72 months - against the seventy-two month consecutive sentence.  Even though Mr. Townsend is correct that jail credits should have been applied to the life sentence, in this instance this would actually have increased the overall length of imprisonment.  By putting all of the jail credits on the seventy-two month sentence the court cut Mr. Townsend just a bit of slack.   

Although Portions of State’s Grand Jury Presentation Were “Problematic” Dismissal of Indictment was Not Required.

State v. Morrow, Minn.S.Ct., 8/7/2013.  A grand jury indicted Mr. Morrow with one count of first degree premeditated murder, two counts of attempted first degree premeditated murder and seven other counts.  A jury convicted him on everything and the court imposed a life sentence without possibility of parole on the top count.  Mr. Morrow raised a number of issues on appeal, including the denial of his motions to dismiss the indictment on various grounds, and to suppress his statement to the police.  Justice G. Barry Anderson – Wright & Lillehaug not participating - affirmed the conviction and sentence.

Mr. Morrow, through counsel, notified the prosecutor that he wanted to testify before the grand jury.  The attorneys then spent some time negotiating whether that would happen; it didn’t and instead, the grand jury heard an officer’s summary of Mr. Morrow’s statement to the cops.  Mr. Morrow complained that what the cop told the grand jurors misrepresented what he’d said to the point of more or less eviscerating his claim of self defense.   Mr. Morrow also complained that the prosecutor failed to present exculpatory evidence and failed properly to respond to questions from the grand jurors.  The court summarily rejects Mr. Morrow’s clam that he had a right to testify before the grand jury; rather, the decision to call a defendant as a witness before the grand jury is a discretionary decision that was not abused in this case.

Mr. Morrow also claimed that his testimony would have been exculpatory but the court was not presented with an offer of proof of what that evidence would have looked like.  On his claim that the officer misrepresented his statement to the grand jury the court concludes that even though there were some inaccuracies in it, it was close enough for government work.  The court does describe portions of the officer’s summary to the grand jury of Mr. Morrow’s statement as “problematic,” but not so much to overcome what the court described as a “heavy burden” that has to be satisfied to dismiss an indictment.

At the beginning of Mr. Morrow’s custodial interrogation he asked the officers if could talk to his Dad if he cooperated with them “one hundred percent.”  The officers told him that if he told them the truth and if they believed him then he would be allowed to make the call to his Dad.  Mr. Morrow argued that this made his statement involuntary because the officers exploited Mr. Morrow’s special relationship with his father.  The test whether a defendant’s statement is voluntary is whether that defendant’s will was overborne at the time of his confession, determined under a “totality of the circumstances” analysis.  State v. Zabawa, 787 N.W.2d 177 (Minn. 2010).  The court affirms the trial court’s conclusion that the statement had been voluntarily made.

The trial court permitted the state to introduce a photograph of the deceased, who was a grown man at the time of his death, as a child.  The court upheld the introduction of this photograph – “spark of life” – concluding that it was not used to invoke undue sympathy or to inflame the jury’s passions.  See State v. Scales, 518 N.W.2d 587 (Minn. 1994). 

8/5/2013: No Published Court of Appeals Criminal Opinions Today

State May Appeal Order Amending Restitution Portion of Original Sentence

State v. Borg, Minn.S.Ct., 7/31/2013.  Back last November the court of appeals said that the state could not appeal a restitution order that the trial court had made separate from the criminal judgment and commitment.  Read here.  In short order the supreme court accepted review and now reverses the court of appeals.  Justice Page concluded that an order that amends the restitution portion of a sentence is still a “sentence imposed,” which is one of the types of district court decisions that the state can appeal under Rule 28.04, subdivision 1.  The court announces that restitution is, indeed, a part of a defendant’s sentence.  Because subdivision 1(2) of Rule 28.04 authorizes the state to appeal from any sentence imposed, restitution is included.  The state may thus appeal from that amended order.

Former Wife’s Out of Court Statements Admissible Under Residual Hearsay Exception; No Search Warrant Required Under The Facts of this Case to Obtain Records of Cell Phone Call Logs and Cell Tower Locations

State v. Griffin, Minn.S.Ct., 7/31/2013.  A jury convicted Mr. Griffin of a couple counts of first degree murder – drive-by and premeditated.  Mr. Griffin murdered his former wife’s significant other in the course of which Mr. Griffin used his girlfriend’s cell phone for various purposes.  Without benefit of a search warrant the state got the cell phone records for the girlfriend’s phone in order to determine the time and location of these calls.  The state also introduced certain statements that Mr. Griffin’s former wife made to friends of hers shortly before the murder that accused Mr. Griffin of stalking her over her current lover.

Mr. Griffin objected to these two actions.  On the former wife’s out of court statements, the trial court had allowed the state to introduce them under the residual exception to the hearsay rule, Rule 807.  Chief Justice Gildea upheld the trial court’s admission of these statements, concluding that there had been no abuse of discretion in doing so.  The statements were volunteered without suggestive or leading questions, remained consistent both over time and to different people, and were made without motive to lie.  See State v. Robinson, 718 N.W.2d. 525 (Minn. 2006). 

On the cell phone records – which included only the call logs and cell tower locations, and did not include the content of any of them – the chief justice again upheld the trial court’s determination that the state had not needed a search warrant.  The court relied on a similar opinion, State v. Gail, 713 N.W.2d 851 (Minn. 2006).  Mr. Griffin was not a subscriber to the phone.  He produced no evidence that he had attempted to conceal anything about the cell phone, and he offered to evidence to support his claim that he had an expectation of privacy in the particular phone records. 

The cell phone records issue may yet be headed to the U.S. Supreme Court.  The Fifth Circuit came to the same conclusion as did Chief Justice Gildea, although there was a dissenting vote.  Read about that case here.  The First Circuit, however, ruled last May that a warrant was required.

7/29/2013: No Published Court of Appeals Criminal Opinions Today

Because Defendant was Not “In Custody” No Error in Admitting His Statement

State v. Sterling, Minn.St.Ct., 7/24/2013.  The cops, they swear on a whim, invited Mr. Sterling down to the cop shop man cave to chat about a murder they were investigating; being good public servants they even offered him a ride downtown.  Which he accepted.  Once there, the police did not handcuff Mr. Sterling and did not lock him inside the interrogation room when they left him alone to stew.  Whether Mr. Sterling could have actually left the building permanently remained untested, although he was denied a cigarette break and like the cigarette break Mr. Sterling had to ask the cops for anything else that he may have wanted .

Mr. Sterling arrived at the police station at 3:30 in the morning.  Nine and a half hours later the cops arrested Mr. Sterling for the very murder that they were investigating, and only then did they read him the Miranda warning.  He did lawyer up at that point.

Mr. Sterling moved to suppress the statements he made before being given a Miranda warning.  The trial court denied that motion, concluding that a reasonable person would not have believed during that nine and a half hours that he was in police custody to the degree associated with formal arrest.  Justice Page, writing for a six person court, agreed, citing State v. Champion, 533 N.W.2d 40 (Minn. 1995), and State v. Vue, 797 N.W.2d 5 (Minn. 2011).  Justice Page recites a laundry list of factors that may combine to indicate that an individual is in custody, but not one of those factors is whether a reasonable person would believe that she was not free to leave. 

Everyone took a break of some sort after about seven hours or so.  When things got going again it seemed pretty clear – at least to Justice Page – that the cops were zeroing in on Mr. Sterling.  He was still not under arrest yet and thus did not get a Miranda warning; another two plus hours awaiting that event.  During this period Mr. Sterling made several statements that the state introduced at trial.  Justice Page said that it was a “close call” whether Mr. Sterling was “in custody” after the break but decided it didn’t matter, that any error in admitting the statements Mr. Sterling made in this interim was harmless.

Mr. Sterling also challenged the sufficiency of the circumstantial evidence to support the conviction.  The court concluded that the state had produced enough evidence to uphold the verdict.

Court Rejects Facial Due Process Challenge to DANCO Statute

State v. Ness, Minn.S.Ct., 7/24/2013.  This is the DANCO challenge case.  Read here.  After the district court issued a domestic abuse no contact order that prohibited Mr. Ness from contacting his wife he allegedly violated that order.  That resulted in a new criminal charge.  Mr. Ness moved to dismiss the charge.  He said that the statute, itself, failed to provide adequate notice and opportunity to be heard; and it encouraged arbitrary and discriminatory enforcement.  On the first claim, Mr. Ness said that because the statute requires that the hearing on the application for the DANCO must immediately follow  – and be separate from – the hearing to establish terms of release there was inadequate notice and opportunity to be heard on the request for the DANCO.  On the second claim, he said that the statute established no criteria by which the trial court was to decide whether to issue the DANCO.

And the court rejects both arguments.  Justice Page says that because this is a facial challenge to the statute and not an “as applied” challenge, Mr. Ness had to show that no set of circumstances exist under which the statute would be valid.  Any constitutionally valid application of the statute suffices to defeat a facial challenge.  Here, Justice Page concludes that the pretrial release hearing is, itself, adequate notice and opportunity to be heard on the immediately to follow DANCO hearing.  The reason for this is that the pretrial release hearing is a constitutionally valid process and thus provides valid notice of what’s next in store.  Moreover, counsel will have been appointed during that pretrial release proceeding so in the DANCO hearing there is legal representation.  The court also repeatedly stresses that counsel had been appointed to represent Mr. Ness, that the Complaint recited the state’s requested conditions of pretrial release, that at the first appearance the state served Mr. Ness with a notice of evidence and identification procedures, and that at the first appearance the state served him with a trial witness list.

On the second claim, the court says that the DANCO statute contains restrictions enough on the circumstances under which the order can be issued, and thus on its face the statute does not encourage arbitrary and discriminatory enforcement.  The order can only be issued against a limited class of individuals, individuals charged with the four offenses specified in the statute.  The order can only be issued as a pretrial order or as a postconviction probationary order.  the order can only be issued “immediately following” either the pretrial release hearing or probationary sentencing hearing.  Just how these logistical requirements act as a check on a court’s arbitrary actions isn’t really explained.  Additionally, for a defendant arrested and not released, the court must make a determination of probable cause without unnecessary delay.  If the court sets conditions of release at a pretrial hearing it must issue a written order that recites those conditions and a copy of the order must be given to the defendant, among others.  These requirements, having nothing to do with the DANCO order, are, nonetheless, a further check on arbitrary judicial action.

Finally, the court observes but neither endorses nor rejects the conclusion of the court of appeals that Mr. Ness could actually challenge the DANCO order collaterally as part of his defense.

Sale of Alcohol to Underage Persons is Strict Liability Crime and Does Not Violate Due Process

State v. Rohan, Minn.Ct.App., 7/22/2013.  Ms. Rohan served a beer to a patron who was under the age of twenty-one; it said so right on the identification that she showed Ms. Rohan.  The cops busted Ms. Rohan for serving alcohol to an underage person.  Ms. Rohan moved either to invalidate the statute, Minn.Stat. 340A.503, subd. 2(1) on due process grounds, or to declare that the state had to prove that Ms. Rohan intentionally violated the law.  The district court opted for door number two – the state had to prove intentional violation of the law – and the state brought this pretrial appeal.

And won.  The statute that prohibits serving alcohol to underage persons is a strict liability crime, at least in Minnesota.  It turns out that this prohibition has been on the books for one hundred forty-one years.  That was 1872.  Before that, a parent of a minor had to run over to the tavern and give the barkeeper written instructions not to serve the kid the next time she shows up wanting a brew and thereafter.  In 1877, the state supreme court held that the statute did not require proof of intent.  State v. Heck, 23 Minn. 549 (1977).  That settles the question here in the twenty-first century.  After Heck, the legislature’s many amendments to the statute never included an intent element.

The court also rejects a due process challenge to the absence of an intent requirement.

Chief Judge Johnson dissented.

7/17/2013: No Published Supreme Court Criminal Opinions

7/15/2013: No Published Court of Appeals Criminal Opinions Today

7/10/13: No Published Supreme Court Criminal Opinions Today

7/8/2013: No Published Court of Appeals Criminal Opinions Today

7/8/2013.  Read the Title.

7/3/13: No New Criminal Opinions Today; Review Granted in Search Warrant Case

7/3/2013:  The Court granted review in one case, State v. Yarbrough.  Here's the opening description:

The state took a pretrial appeal of an order granting Mr. Yarbrough’s motion to suppress evidence seized during the execution of a search warrant at Mr. Yarbrough’s residence.  The warrant sought both drugs and a gun.  The search warrant affidavit alleged that three days earlier Mr. Yarbrough had been involved “in a terroristic threats situation” during which he accused the victim of the threats of stealing “a large amount” of crack cocaine from him, during which he punched the victim, during which he “brandished” a .22 caliber handgun, and after which he then fled in a maroon Chevy Caprice.  The affidavit went on to say that the Caprice registered to the address sought to be searched, that police data bases established that Mr. Yarbrough lived at that address, that Mr. Yarbrough had been arrested three months earlier for possession of narcotics, and that a snitch “knew "[Mr. Yarbrough] to deal in crack cocaine.”

To Be “Plain Error” That Error Must Have Been “Plain” at the Time of Trial, Not During Appeal

State v. Kelley, Minn.Ct.App., 7/1/2013.  This seems to have been a drug deal that didn’t turn out too well.  Eventually, Mr. Kelley and his partner beat down the drug seller, took some of his stuff.  A jury convicted Mr. Kelley of first degree aggravated robbery and third degree assault. 

The legal fight was over the jury instructions.  The judge agreed, over the state’s objections, to instruct the jury on accomplice liability, at least for the robbery.  The judge gave the standard jury instruction, which told the jury that the state had to prove that Mr. Kelley intended his presence at the beat down to further the commission of the robbery, but did not tell the jury that the state had to prove that Mr. Kelley knew that his partner planned to commit a robbery.  Mr. Kelley did not object to this instruction so he’s in “plain error” land.

Now, at the time of the trial, everyone thought that this was a correct instruction.  Very shortly after Mr. Kelley filed his notice of appeal the supreme court came out with State v. Milton, 821 N.W.2d 789 (Minn. 2012.)  Milton required what the court had been suggesting: that the state had to prove both that a defendant knew that an accomplice was going to commit a crime and that a defendant intended his presence or actions to further the commission of that crime.  Milton thus made the trial court’s instruction an erroneous one, but was it “plain?

No, it was not.  The instruction neither violated settled law nor complied with settled law that was reversed during the pendency of the appeal.  The instruction is in the middle area where the error was unclear at the time of trial but became clear on appeal because the applicable law had been clarified.  The instruction was unclear at the time of trial because even though the Minnesota Supreme Court had strongly suggested that omitting the knowledge part was error – State v. Mahkuk, 736 N.W.2d 675 (Minn. 2007)  - the court had not required such an instruction until Milton.  The result is that the court will apply a “time-of-error” approach to “plainness,” rather than a “time-of-appeal” approach to “plainness” analysis. 

Just to be safe, the court also says that even if its approach to “plainness” is wrong the error did not affect Mr. Kelley’s substantial rights; and it did not affect the fairness and integrity of the judicial proceedings – the other two requirements of plan error analysis. 

Supreme Court Accepts Review in State v. Lemert

The supreme court has accepted review of this court of appeals opinion, wherein the court of appeals said that the “right to frisk” can derive from the “right to stop” so long as the quantity of drugs is “large.”  Read about the court of appeals opinion here.

Exclusion of Third Party Perpetrator Evidence Does Not Violate Defendant’s Due Process Right to Present a Complete Defense

State v. Pass, Minn.S.Ct., 6/26/2013.  A jury acquitted Mr. Pass of two counts of second degree murder for the stabbing death of Tina San Roman, but deadlocked on two other counts assault and attempted murder for the stabbing of a second victim, O.A.R.  In the run up to a retrial on these unresolved counts the state (eventually) wanted to be able to tell the jury that O.A.R. had found Mr. Pass in the garage standing over Roman’s body, that Mr. Pass told O.A.R. to  help him because Roman had stopped breathing, and as O.A.R. tried to assist Mr. Pass, Mr. Pass attacked him with a knife.  Mr. Pass wanted to introduce evidence in support of his third party perpetrator defense which he admitted would be inadmissible because it would be unduly prejudicial, confuse the issues, and mislead the jury.  Mr. Pass then said that if the court agreed that his third party perpetrator evidence was inadmissible then the court should dismiss the remaining counts on a due process argument that he was being denied the right to present a complete defense.

The trial court excluded all of the proffered evidence about Roman’s death.  The court also explained that Mr. Pass could not present his third party perpetrator defense without using evidence related to Roman’s death and granted the motion to dismiss.  The court of appeals affirmed the dismissal and now Justice Stras, writing for a six member court, reverses.

The first question is whether the state can even appeal the dismissal without violating Mr. Pass’s double jeopardy rights.  If the dismissal constituted an acquittal on the merits then the state can’t appeal.  This determination turns on whether the dismissal was a resolution in the defendant’s favor of some or all of the factual elements of the offense charged.  State v. Sahr, 812 N.W.2d 83 (Minn. 2012).  Here, however, the trial court granted the dismissal motion on due process grounds, explicitly stating that exclusion of all evidence related to Roman’s injuries and death would not significantly reduce the likelihood of a successful prosecution.  So, the state can appeal.

And concludes that the trial court had excluded the third party perpetrator evidence under Rule 403 of the rules of evidence even though it didn’t really say that. That rule does permit the exclusion of evidence that is unfairly prejudicial, confusing or misleading.  But, that exclusion is “unquestionably constitutional.”  Montana v. Egelhoff, 518 U.S. 37 (1996) (plurality opinion).  The court reverses the decision of the court of appeals and sends the case back to the district court.

Whether Killing Cat was Justified Is Jury Determination and Not Probable Cause Challenge

State v. Gerard, Minn.Ct.App., 6/24/2013.  Mr. Gerard shot his neighbor’s cat.  It seems, or so Mr. Gerard believed, although he never actually saw the cat do this – well, at least not to the chickens; Mr. Gerard did say that he’d seen the cat kill the turkeys - that the cat liked Mr. Gerard’s young turkeys and chickens.  To kill and eat them, that is.  Well, when the deputy arrived first to find the expiring, bloodied  cat in the arms of its loving parents, and, second, to see Mr. Gerard’s chicken coop (full of chickens one supposes although the court doesn’t say), he could find no fault with Mr. Gerard’s actions.  He then put the cat out of its misery and sometime later he wrote an affidavit that said that Mr. Gerard had been justified in killing the cat. 

The state took a dim view of all this, and charged Mr. Gerard with felony unjustifiably killing the cat, (whose name we never learn.  We did learn that the cat was white, and wore a dark collar with a bell on it, although apparently neither a big nor loud enough bell.)  Mr.. Gerard moved to dismiss, saying that there was insufficient probable cause, in support of which he produced the deputy’s affidavit.  The trial court granted the defense motion and the state took an appeal.

And got a reversal.  The court of appeals said that the deputy’s opinion that Mr. Gerard was justified in killing the cat was inadmissible lay opinion.  And, that lay opinion about a point of law – whether Mr. Gerard was justified in shooting the cat – was not helpful to the jury.  Moreover, the state had produced enough evidence at the probable cause hearing that Mr. Gerard could have used a nonlethal means to protect his chickens, from which a jury could conclude that the killing was unjustified. 

Mr. Gerard goes back to face trial.  Shoo, kitty.

Court Declines to Consider Harmlessness of Error in Instructions When The State Did Not Assert Harmless Error

State v. Porte, Minn.Ct.App., 6/24/2013.  A jury convicted Mr. Porte of a number of counts of controlled substances offenses.  Officers stopped a van that Mr. Porte was driving.  The officers found dope in various places inside the van.  Mr. Porte told the jury that he was in the process of buying the van and that none of the drugs in it were his.  As part of the jury charge, the trial court gave the jury a “permissive-inference instruction:

In determining whether or not it has been proven beyond a reasonable doubt that defendant was in knowing possession of cocaine, you should consider all of the evidence presented. The law allows, but does not require, you to find knowing possession from proof beyond a reasonable doubt that defendant was the driver or in physical control of a passenger automobile and cocaine was present in the automobile.

On appeal, the court rejected a claim that the state had failed to present sufficient evidence to support the conviction. 

The “permissive-inference” instruction is a no-no:  State v. Litzau, 650 N.W.2d 177 (Minn. 2002).  The state, curiously, thought otherwise and only argued that the instruction was just fine.  It did not make even the alternative argument, “but, if the instruction was error it was harmless error.”  The court of appeals said, in that case, the state has waived that argument unless it was obvious that the error was harmless.  Barnes v. State, 768 N.W.2d 359 (Minn. 2009). 

It was not so obvious.  The court applied a test that the Seventh Circuit Court of Appeals articulated back in 1991 in the case of United States v. Giovannetti, 928 F.2d 225 (7th Cir. 1991).  Essentially, the Seventh Circuit said writing about an issue that no one raised is a lot of work; the judges (or their clerks) have to actually read the trial record.  Such a practice might even be harmful to an appellant who would not have had the chance to weigh in on the harmlessness of the error.  So, the court of appeals said it was just not going to do it.  The upshot of the waiver is that Mr. Porte get a new trial.

Supreme Court: NOT

6/19/2013:  No published supreme court opinions today.

Court Rejects Due Process Claim of Excessive Bail

State v. Thomas, Minn.Ct.App., 6/17/2013.  After police arrested Ms. Thomas on a drug charge, the trial court released her on a conditional release.  When she didn't perform the conditions the trial court modified bail.  Ms. Thomas could either pay $25,000.00 bail for an unconditional release; or she could pay $500.00 and pay for drug testing for a conditional release.  Ms. Thomas appealed the amended release terms, saying that because she could not afford to pay for the drug testing the court had set excessive bail.  She said that her rights under the Fourteenth Amendment -not the Eighth Amendment - to due process and equal protection were violated when the trial court based her release terms on drug testing that she could not afford.

The court of appeals summarily rejects these Fourteenth Amendment challenges, opting to stay, sort of, with an Eighth Amendment excessive bail analysis.  The court observes that what the trial judge did seemed within his discretion in setting terms of release, but that's just chatter.  The court admits that it is only rejecting a Fourteenth Amendment claim - the only claim made to the trial court - and is not ruling on any Eighth Amendment excessive bail claim.  That's because that claim was neither presented to the trial court nor presented to them.

Forensic Analysis of Lawfully Seized Computer Hard Drive is Not Subsequent Warrant-less Search

State v. Johnson, Minn.Ct.App., 6/17/2013.  In a stipulated facts trial, the trial court found Mr. Johnson guilty of five counts of possessing a pornographic work involving minors.  Agents from the BCA obtained a search warrant for Mr. Johnson's residence; the warrant specifically authorized the seizure of computer systems, hard drives, and the data contained on hard drives.  Agents seized a hard drive but did not get around to examining it for several months.  Mr. Johnson moved to suppress the evidence found during the forensic analysis, saying that the analysis was a warrant-less search.  The trial court disagreed, and the court of appeals affirmed the trial court.

The court said that Mr. Johnson did not retain a reasonable expectation of privacy in the contents of the hard drive.  This was because the drive and data on it were seized pursuant to a search warrant authorizing a seizure of that very hard drive.  Further, the search warrant authorized the seizure and search of the data on the hard drive.  The court likened the hard drive to a container that has already been lawfully opened, found to contain contraband and then resealed.  Resealing the container neither revives nor restores the lawfully invaded privacy rights.  Illinois v. Andreas, 463 U.S. 765 (1983).  So, peeking into the box, or subjecting it to a data analysis for that matter, is not a "search."  

Mr. Johnson also complained about the sentence, specifically that the trial court abused its discretion by not considering a downward dispositional departure.  Now, the agreement did not call for a sentencing departure and defense counsel neither moved nor argued for one.  Counsel just pointed out that the judge had the discretion to sentence more leniently than the parties' agreement specified.  The court of appeals says that a trial court is not required to abide by the parties' sentencing agreement, but in this case there were no compelling circumstances to support a sentencing departure.  Because of that, the trial court did not abuse its discretion by imposing the guidelines sentence.