Appellate Review of Claim of Biased Juror Waived By Failure to Object

State v. Geleneau, Jr., Minn.Ct.App., 12/21/2015.  The state charged Mr. Geleneau, Jr. with multiple counts of criminal sexual conduct.  In this combined direct appeal and appeal of the denial of a post conviction petition the focus is on jury selection.  Mr. Geleneau, Jr. said that the trial court had erred by not dismissing two prospective jurors for cause sua sponte.  He also said that he trial counsel had been ineffective for not moving to strike these two prospective jurors for cause.

The long and the short of it is that because trial counsel expressly waived his right to challenge the prospective jurors for cause - "That's all the questions I have this afternoon.  I pass [the panel] for cause, Your Honor." - Mr. Geleneau, Jr. could not complain on direct appeal that the trial judge should have done the work for him. Both the rules and prior case law say that counsel has to object, in this case by moving to strike the prospective jurors for cause in order to seek appellate relief.  The absence of an objection is enough, by itself, to reject a biased-juror argument on appeal. The court implies but ultimately ducks saying that a trial court never has an obligation to strike a biased juror sua sponte.

Turing to the ineffective assistance claim the court Mr. Geleneau, Jr. did not argue that trial counsel was obligated to allow a defendant to make decisions about keeping or striking prospective jurors.  That makes the failure to have moved to strike for cause a discretionary call by trial counsel.  The trial court wrote a lengthy rationale supporting trial counsel's decision not to seek to strike the two prospective jurors, which the court of appeals accepts.  Read that yourself and agree or disagree with it.

What's more intriguing is the court's dismissal of an affidavit from an unnamed "experienced criminal defense attorney" who reviewed only a three-page summary of the transcript of voir dire which had been prepared by post conviction counsel:

[The] opinions offered by the experienced criminal defense attorney are incapable of proving that the strategic decisions of trial counsel, who was present in the courtroom and undoubtedly had multiple sources of information about the prospective jurors, were below an objectively reasonable standard of performance.

No Seizure Occurs By Officer's Illumination of Already Stopped Vehicle by Squad Spotlight

Illi v. Commissioner of Public Safety, Minn.Ct.App., 12/21/2015. At around 1:30 in the morning an officer saw a red Jeep drive into the parking lot of a stip mall, then stop along a curb in that lot behind a delivery truck.  The officer pulled in behind the Jeep and to its left, stopping several feet away.  The officer illuminated the area with his spotlight and then walked over to the Jeep.  The officer neither activated his emergency lights nor used the squad's loudspeaker.  

Ms. Illi was the sole occupant in the Jeep.  When the officer got to the driver's side of the Jeep he noticed signs of her intoxication. One thing led to another and the officer arrested Ms. Illi for suspected drunk driving.  At the police station Ms. Illi refused to provide an adequate breath sample to determine her intoxication level.  The Commissioner revoked her license; she challenged that revocation saying that the officer had illegally seized her under the state constitution by blocking her in and by shining the squad's spotlight on her vehicle.

The district court had found that the officer had not parked his squad car so as to have prevented the Jeep from leaving.  The court of appeals accepts that finding and thus rejects Ms. Illi's first assertion that the officer seized her by the positioning of his squad car.

The court also rejects Ms. Illi's other assertion that the officer seized her by illuminating the Jeep with the squad's spotlight. There's a case from 1989, Crawford v. Commissioner of Pubic Safety, 441 N.W.2d 837 (Minn.Ct.App. 1989), where the officer briefly illuminated an already stopped vehicle.  The court had held that this did not constitute a seizure.  The court here concludes that the permanency of the spotlight's illumination is a distinction without difference:

We have no cause to suppose that a reasonable person would feel significantly more or less free to drive away depending simply on whether or not the officer had turned the spotlight off before approaching. These salient circumstances did not constitute a seizure in Crawford, and so they also do not constitute a seizure here. 

12/16/2015: No Supreme Court Published Criminal Opinions

Evidence Sufficient to Support Assault 4; Batson Challenge Denied

State v. Ivy, Minn.Ct.App., 12/14/2015.  The state charged Ms. Ivy with fourth degree assault of a peace officer.  The peace officer in question, who during his "day job" is a St. Paul officer, was working off duty at Regions Hospital when Ms. Ivy caused a scene. The officer's job title at Regions is that of a "uniformed security officer."  Uniformed security officers get to wear police uniforms with a hospital ID.  Regions also employs "hospital safety and security officers."  They wear cargo pants and pullover shirts. 

Because of Ms. Ivy's boorish and obscene behavior the officer in question asked her to leave.  In the course of escorting Ms. Ivy off the premises she ended up tearing the officer's shirt, and clawing his face with her hands and fingernails which left scratch marks and blood on his face.  It was only then that the officer in question arrested Ms. Ivy; before that he was only going to throw her out.

The jury convicted her of the assault.  She argued on appeal that the evidence had been insufficient to prove that the officer in question was either executing a lawful arrest or executing any other duty imposed by law.  Minn.Stat. 609.2231, subd. 1.  Ms. Ivy said that the officer in question was only enforcing hospital policy - behave yourself - and not executing any other duty imposed by law.  The court said, well that may be, but the officer in question was also protecting the health and safety of the hospital's patients and preventing a breach of the peace.  And surely those are two duties "imposed by law" upon a St. Paul cop.  More importantly, the officer in question had probable cause to have arrested Ms. Ivy for trespass because she had sneaked back into a part of the emergency room where she did not have authorization to be.  And she was causing a scene:  disorderly conduct.  That the officer in question decided initially only to remove Ms. Ivy from the premises rather than arrest her does not mean that he was not exercising a duty imposed by law. 

There's also a Batson issue.  A prospective juror stated that she had two cousins who had been charged with crimes, one with whom she was close. She also stated that an officer had pulled her over one time and she believed that the officer had used her boyfriend's prior gang involvement as a reason to search her car.  Finally, she described a negative hospital experience where her mother was refused service for the ostensible reason that she had no proof of insurance.  Because the prospective juror believed that the explanation for refusing service was racially motivated, she behaved rather badly toward hospital staff.  Both this prospective juror and Ms. Ivey are African American.  The state struck this prospective juror and Ms. Ivy objected.  

The state said that the prospective juror's hospital experience of a loved one whom she believed was not getting appropriate care because of race and her rather naughty response to that service refusal were both race-neutral reasons for excluding her.  The state then doubled down on the experience of the prospective juror's cousins with the legal system and the incident when an officer pulled her over to satisfy the requirement that these reasons not be pretextual.  Both the trial court and the court of appeals accepted these assertions.  Ms. Ivy fails in her Batson challenge.

Mail Properly Addressed and Sent Is Presumed to Have Been Duly Received

State v. Osorio, Minn.Ct.App., 12/14/2015.  Back in March 2007 the state investigated a claim that Mr. Osorio had sexually abused his minor stepdaughter.  No charges were filed at the time.  Mr. Osorio moved to California a move that the local police knew about.  The local police resubmitted the case or charging about nine months later but again no charges were filed.  

Nearly five years later, in September 2012, the local police received a complaint that Mr. Osorio had sexually assaulted another of his minor daughters.  In May 2013, the state finally charged Mr. Osorio with two counts of criminal sexual conduct in the first degree.  He was not arrested until twenty-one months later, Februry 2015 during which the state knew exactly where Mr. Osoria was. Mr. Osorio moved to dismiss on Barker v. Wingo, 407 U.S. 514 (1972) speedy trial grounds.  The trial court dismissed the charges.  

Mr. Osorio wins the first of the four Barker factors, the length of delay. A twenty-one month delay is presumptively prejudicial. The second factor is the reason for the delay.  The state knew where to find Mr. Osorio during the twenty-one month delay; it just didn't bother to got get him. So, this negligence goes against the state. Two down, two to go.

The third factor is whether and when Mr. Osorio asserted his right to a speedy trial.  Here, the court issued a summons and complaint and mailed them to Mr. Osorio's address in California.  There is nothing of record to refute the presumption that Mr. Osorio got the letter.  Also, he did not claim that he did not get the letter.  This factor goes to the state.  The fourth factor is prejudice to Mr. Osorio that is due to the delay.  About the best that he could do was to speculate that some possibly exculpatory audio recordings had been lost or destroyed during the delay, but he could not establish that this loss or destruction was "due to the delay."  What was left was Mr. Osorio's inaction after he presumably got the summons and complaint.  This one also goes to the state.

To break the tie, the court looks to the seriousness of the alleged offense.  That tips the scales in the state's favor.

There Is No Threats Exception To Psychologist-Client Privilege Statute

State v. Expose, Jr., Minn.S.Ct., 12/9/2015.  This comes up from the court of appeals, read here.  During court-ordered anger management counseling, Mr. Expose, Jr. made threats against his child protection worker.  His counselor reported the threats and the state charged him with terroristic threats.  The state wanted to put the counselor on the stand to tell the jury what Mr. Expose, Jr. said. Mr. Expose, Jr. objected for two reasons:  first, prior to trial he said that the counselor was not a licensed psychologist and thus not subject to the statutory mandated reporter requirements.  Second, during trial he said that his statements to the counselor were privileged. The trial court rejected both those arguments.  The court of appeals reversed, saying that the therapist-client privilege prohibited the counselor from testifying about information she learned during the therapy sessions.  The court of appeals also said that there was no "threats exception" to the privilege.

Justice Stras, with Justices Wright and Hudson not participating, affirms the conclusion of the court of appeals that there is no "threats exception" to the privilege, but then says that the privilege does not extend to testimony of third parties, namely the person who the counselor told about Mr. Expose's threats.

But before Justice Stras gets there he detours to talk about whether the privilege objection made during trial had been timely.  The state said that Rule 10.01 required the defense to raise the privilege objection before trial.  Here's what the rule says:

[d]efenses, objections, issues, or requests that can be determined without trial on the merits must be made before trial by a motion to dismiss or to grant appropriate relief. The motion must include all defenses, objections, issues, and requests then available. Failure to include any of them in the motion constitutes waiver . . . .

Justice Stras rejects this waiver argument.  The rule, he says, applies to such things as challenges to the adequacy of a complaint because that can be determined by looking at the pleadings.  A privilege objection, on the other hand, is dependent upon what the witness is actually saying.  That is, is the counselor testifying to information or opinion acquired "in attending the client in a professional capacity."  Minn.Stat. 595.02, subd. 1(g).  So, Mr. Expose, Jr. didn't waive the privilege objection.

On the merits, Justice Stras, ever the strict constructionist, just can't find any words in the privilege statute that creates a "threats exception."  There are other exceptions in that statute but not for this.  The Justice was not willing to piggy-back the mandated reported statute to infer such an exception.

Employing that same strict constructionist approach the Justice cannot find any words in the privilege statute that excludes testimony from a third person to whom the counselor blabbed. Here, she told another person - her supervisor - of the treats because the counselor believed that she had a duty under the mandated reporter statute to do so.  Apparently the counselor's supervisor was neither a registered nurse, a psychologist, or a licensed social worker, who are the only professionals that the privilege statute covers.  The supervisor was thus a competent witness.

Even so, the court sends Mr. Expose's case back for a new trial because it could not say that the error in allowing the counselor to testify did not substantially influence the jury's verdict.  State v. Sanders, 775 N.W.2d 883 (Minn. 2009).

Trial Court Can Still Order Restitution Even Eight Years After Sentencing

State v. Andersen, Minn.S.Ct., 12/9/2015.  Mr. Andersen is serving a sentence of life without possibility of release from a June 2008 conviction. At the time of sentencing the court had left the question of restitution open for thirty days.  The state filed a restitution request within that thirty days but it took the court some eight years - October 2014 - to get around to granting that request.  After sentencing an attorney different from trial counsel filed a motion for a new trial but did not file a certificate of representation.  Trial counsel did not withdraw. The state served trial counsel with the restitution motion as well as Mr. Andersen.  No one filed a response to the motion for restitution.  Mr. Andersen thought that ordering restitution eight years after sentencing for a man who was never going to get out of prison was a bit harsh.

When the Department of Corrections got word of the restitution order in October 2014 it began to garnish his prison accounts.  Mr. Andersen filed a motion back with the trial court asking the court to take another look at the restitution business, to order DOC to return his money, and to appoint an attorney to represent him.  The trial court said no to the appointment of counsel; said that the state's service on Mr. Andersen's trial attorney was proper service; and said that Mr. Andersen was required to pay up.

Mr. Andersen made two challenges to the trial court's authority to order restitution.  First, he said that the state's service of the motion was not proper.  The trial court said that service on Mr. Andersen's trial attorney was effective to give Mr. Andersen notice.  Justice Diezten comes to the same conclusion; because trial counsel did not withdraw from representation - See Minn.Gen.R.Prac. 703 - the state's service on that attorney was effective even though by the time the state served its motion a different attorney had filed a motion for a new trial.  New trial attorney's failure to have filed a certificate of representation inured to the detriment of Mr. Andersen.  The court ducks the question whether the state's (additional) service of its restitution motion on Mr. Anderson personally was ineffective because he was represented by counsel.

Mr. Andersen's second challenge was, "Really? After eight years?" Justice Dietzen points out that the restitution statute does not set a deadline for the trial court to order restitution. So long as the statutory requirements are met the trial court can order restitution whenever it likes.  As to appointment of counsel, it's true that the court of appeals has said that a defendant has the right to counsel at a restitution hearing.  State v. Maddox, 825 N.W.2d 140 (Minn.Ct.App. 2013.)  Justice Dietzen ducks the question whether Maddox should be the law by concluding that whatever Mr. Andersen's motion to "resolve the restitution issue" was, it was not a restitution hear.  Finally, the court said that a motion to the district to order DOC to give Mr. Andersen back his money was not the correct way to go about challenging an administrative action. 

Substantive Due Process Does Not Require Rebuttable Presumption of Drug Contamination by St. Paul Crime Lab

State v. Hill, Minn.S.Ct., 12/9/2015.  The state charged Mr. Hill with aiding and abetting first degree sale of ten or more grams of methamphetamine.  Mr. Hill sold two bags of meth to a fellow who turned out to be a confidential informant.  The St. Paul crime lab weighed the two bags - the net weight was in excess of the requisite ten grams.  That lab then tested a small piece from each bag after which the remaining, untested contents of each bag were sealed up in a new evidence bag and subsequently sent over to the BCA for further testing. The BCA weighed the contents of each bag - still in excess of the requisite ten grams - and also tested the contents of each bag - still meth.

Mr. Hill objected to the introduction of the results of the BCA testing. He said that the BCA results that confirmed that the bags contained meth were unreliable because the contents of the bags might have been contaminated while they were in the custody of the St. Paul lab, investigation of which had uncovered deficiencies in its quality assurance controls.  Mr. Hill wanted the court to adopt a rebuttable presumption of contamination.  Chief Justice Gildea rejects that invitation for a unanimous six person court, newly installed Justice Hudson not participating.

Mr. Hill said that adoption of this rebuttable presumption was necessary to vindicate his right to substantive due process. Substantive due process protects an individual from "arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them.  In re Lineham, 594 N.W.2d 867 (Minn. 1999).  The actions of the St. Paul crime lab must have either "shocked the conscience" or "interfered with rights implicit in the concept of ordered liberty" to violate substantive due process. It's a pretty high bar:  acts done with "deliberate and unjustifiable injurious intent", or the use of false evidence .  Given that both the St. Paul lab and the BCA determined that the stuff in the bags was meth, Mr. Hill couldn't really meet that standard.The St. Paul crime lab may have been inept in and ignorant about testing suspected controlled substances  but its heart was if not in the right place at least not proven to have been in the wrong place.  And, of course, had the court adopted a rebuttable presumption for the testing done by the crime lab it would have overturned hundreds and hundreds of previous convictions.

Mr. Hill's fall back position was that the court should adopt this rebuttable presumption under its supervisory powers to ensure the fair administration of justice.  For just about the same reasons the court also declines to do this as well.

Aiding Offender After the Fact Does Not Require That Offender Be Convicted of a Crime

State v. Townsend, Minn.Ct.App., 12/7/2015.  Mr. Townsend pled guilty to aiding an offender after the fact.  In between the plea and sentencing, the "offender" went to trial on a charge of first degree murder and got acquitted.  Oops. Mr. Townsend thought he should get his plea back, but both the trial court and the court of appeals say no.

It's a bit more complicated than that, of course.  Mr. Townsend had bought a gun off a Mr. Shufford.  Not long after, however, Mr. Shufford asked to borrow the gun back "because he intended to rob someone."  Mr. Townsend loaned him the gun.  Later that same day, Mr. Shufford reported to Mr. Townsend on the outcome of the robbery:  he'd had to "slump the guy."  Mr. Shufford showed Mr. Townsend and two other guys the dead body and the four of them then helped themselves to money from the deceased's wallet.

Mr. Townsend said that he couldn't be guilty of aiding an offender after the fact when the offender wasn't convicted of anything.  His plea, he said, was not accurate and thus invalid.  The statute in play, Minn.Stat. 609.495, subd. 3 says that:

“[w]hoever intentionally aids another person whom the actor knows or has reason to know has committed a criminal act, by destroying or concealing evidence of that crime, . . . [or] receiving the proceeds of that crime . . . is an accomplice after the fact.

The pattern jury instructions for aiding an offender after the fact require that the state prove that Mr. Shufford committed the crime of first degree murder.  Of course, the state utterly failed in that endeavor in Mr. Shufford's trial.  But, never mind about that because Mr. Townsend's plea colloquy in which he admitted the aforesaid facts gave him "reason to know" something that Mr. Shufford's jury did not know:  that Mr. Shufford had, committed first degree murder: 

Townsend admitted the following at the plea hearing: (1) he lent Shufford his gun because Shufford intended to rob someone; (2) Shufford told him that the robbery had gone “sour” and that he had to “slump” the victim; (3) Townsend went with Shufford to the site of the murder and Shufford showed him the dead victim in a car, saying that the victim is “not waking up” because Shufford “slumped him”; and (4) Townsend knew the gun had been used to kill the victim. These admitted facts “support a conclusion that defendant’s conduct falls within the charge to which he desires to plead guilty

The court of appeals readily admits that this is grossly unfair but somehow it declines to give Mr. Townsend back his guilty plea under either the more forgiving "fair and just" standard or the "manifest injustice" standard for withdrawal of a plea.

12/2/2015: No Supreme Court Published Criminal Opinions

Injury From Bullet Wound That Could Have But Didn't Cause "Great Bodily Harm" Does Not Support Assault First Degree Conviction

State v. Dye, Minn.Ct.App., 11/30/2015.  Mr. Dye shot E.G. in her lower back.  A CT scan showed that the bullet traveled in a straight line through eight inches of tissue into E.G.'s abdomen.  That was it; the bullet did not hit any organs much less "vital" ones.  After Mr. Dye shot her, he left; E.G. called 911.  When the cops arrived she was still on the phone with the 911 operator.  She was in pain but she managed to tell the officers what Mr. Dye was wearing, that he had left in a black car with his sister's kids, and that he was likely going to his baby mama's place.  The paramedics said that E.G. was able to walk, talk, and breath, and also said that there was no excessive external bleeding at the wound's entrance location.

The state charged Mr. Dye with first and second degree assault, and with unlawful possession of a firearm.  The jury convicted him of all three charges.

Mr. Dye said that there was insufficient evidence to have convicted him of assault in the first degree, which required proof of "great bodily harm."  This is defined as:

bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.

The state said that when Mr. Dye fired a bullet into E.G.'s torso that, alone, created a "high probability of death."  The court of appeals said, well, no, we've already rejected that theory back in 1992 in State v. Gerald, 486 N.W.2d 799 (Minn.Ct.App. 1992). There the court had said that just because the injury was located close to a major vein or artery and thus could have been more serious was not enough to prove "substantial bodily harm.  Rather, the injury, itself, must in fact be life-threatening.  So, because E.G.'s injury - determined by the bullet trajectory - did not hit any critical body parts that injury was not life threatening.  Nor was the injury encompassed within the catch-all language, "other serious bodily harm."  That requires that the court consider the totality of the victim's injuries.  For E.G. that meant a victim who was talking, walking, breathing, providing pertinent information to the cops, and being discharged a day later after doctors made a small incision to remove the bullet.

Mr. Dye also complained about the admission of E.G.'s 911 call and her initial statements to police even though she did not testify.  He said that this was a violation of his confrontation rights under Crawford.  The court rejects this assertion, concluding that the statements that E.G. made to the 911 operator were made to meet an ongoing emergency:

First, both the 911 call and the initial statements to officers were made within minutes of the shooting, while the shooter was still at large in the area. Second, at the time the statements were made, E.G. was in shock, crying, panicky, and appeared to be in significant pain from her recent gunshot wound. Third, the questions asked and answered were designed to address the ongoing emergency and to ascertain E.G.’s physical condition. Notably, the shooter fled the scene still armed with his sister’s children. Fourth, the statements were made in a frantic and non-tranquil environment. E.G. was scared and extremely concerned that the shooter would return and hurt her children. 

11/25/2015: No Supreme Court Published Criminal Opinions

11/23/2015: No Court of Appeals Published Criminal Opinions

11/16/2015: No Court of Appeals Published Criminal Opinions

11/12/2015: No Supreme Court Published Criminal Opinions

Multiple Sentences for Possession of Pornographic Images Acquired on Different Dates Does Not Violate Single Behavioral Incident Rule

State v. Bakken, Minn.Ct.App., 11/9/2015.  The state charged Mr. Bakken with seven counts of possession of pornographic works involving minors.  Mr. Bakken pled guilty to those seven counts. During the plea hearing, Mr Bakken admitted that he downloaded each of the seven images on separate dates and that each image was of a different minor. Over objection on double jeopardy and single behavioral incident arguments, the trial court sentenced Mr. Bakken on all seven counts.

The state first argued that because Mr. Bakken pled guilty without first objecting on double jeopardy and statutory grounds he waived those issues on appeal.  The appellate court said no, that a guilty plea does not bar raising a double jeopardy claim on appeal so long as that claim could be decided on the existing record.  

Rather than address the constitutional double jeopardy claim, the appellate court declared that the single behavioral incident statute, Minn.Stat. 609.035, provides more protection than the constitution and so confined its analysis to that statute.  A single behavioral incident requires a unity of time and place, and a single criminal objective.  Mr. Bakken satisfied the place - his computer - but not the time, since he admitted that he acquired each of the seven images on different dates.  The appellate court was also unwilling to say that his "personal sexual gratification" satisfied the single criminal objective requirement.  Permitting only one sentence when there are multiple incidents spread over time was too much for the court to sanction.

11/02/2015: No Court of Appeals Published Criminal Opinions

10/28/2015: No Supreme Court Published Criminal Opinions

10/26/2015: No Court of Appeals Published Criminal Opinions

Court Applies Harmless Error Analysis To Witness Intimidation Claim

Colbert v. State, Minn.S.Ct., 10/21/2015.  Mr. Colbert is serving a life sentence without possibility of release for the murder of Robert Mitchell back in 2003.  This is his sixth post conviction petition.  He said that a "state actor" had threatened a defense witness before testifying, that there was newly discovered evidence that the state had altered an exhibit, that there was juror misconduct, and that all these errors combined entitled him to a new trial.  The post conviction court summarily denied the petition.

Justice Dietzen apparently wanted to write about the standard of proof by which to assess whether a witness intimidation claim by a government actor violated a defendant's right to present a complete defense.  The Justice assumed without deciding that the claim was neither time barred under the post conviction petition nor procedurally barred under Knaffla.  The question to be answered is whether the interference was "substantial," which is fact specific. The court applied this "substantial interference" test in State v. Beecroft, 813 N.W.2d 814 (Minn. 2012).  

So, for Mr. Colbert, assuming that there was error was it harmless or structural?  If structural then Mr. Colbert gets a new trial without having to show anything other than the error.  The court decides that harmless error is the correct standard so Mr. Colbert had to prove that a government actor interfered with a defense witness's decision to testify, this interference was "substantial" and that Mr. Colbert was prejudiced by the conduct.  Unfortunately for Mr. Colbert, he could not prove prejudice; it seems that the witness whom he claimed had been "substantially interfered" with readily testified for him, even hamming it up just a bit.  

The court concludes that the juror misconduct claim is procedurally barred under Knaffla because he knew about it at the time of his direct appeal and at the time of his previous post conviction petitions but failed without excuse to raise it. The court continues to dodge the question whether the "interests of justice" exception created by Knaffla survives the codification of Knaffla by the legislature.  

Finally, on the exhibit tampering claim, the court concludes that it has no merit, that the exhibit actually shows what Mr. Colbert said that it did not:

No "inherent Authority" to Summarily Impose Monetary Sanction on Attorney Who Fails to Appear for Scheduled Hearing

In re Crag E. Cascarano, Appellant, State of Minnesota, Plantiff v. Mason, Minn.Ct.App., 10/19/2015.  This isn't a criminal opinion, but a tale about a criminal attorney who had the misfortune to miss a scheduled court appearance before a judge who was apparently having a really bad day.  Not only that, the lawyer, Mr. Cascarano, thought he had the hearing covered by a colleague only the colleague forgot to mark his calendar.  When no one appeared on behalf of Mr. Mason the judge slapped Mr. Cascarano with one hundred ($100.00) dollars in "court costs".

Then things got ugly.  Mr. Cascarano got the chief judge of the district to disqualify the judge who'd imposed the "court costs" from presiding over the criminal trial, and to stay the one hundred bucks.  The chief also said that "court costs" could be imposed to punish an attorney's scheduling error in a criminal case only after compliance with applicable contempt statutes.  Well.  The judge who'd imposed the "court costs" shot back that the chief had exceeded his authority to stay the order imposing the "court costs" and ordered Mr. Cascarano to pay up "immediately."  The judge also said he wasn't "punishing" Mr. Cascarano but was relying on the court's "inherent authority."  Mr. Cascarano then had to run up to the court of appeals and get that court to stay enforcement of the "pay immediately" order.

Whew.  

Chief Judge Cleary rejects the trial court's claim of inherent power to impose "court costs" for accidentally screwing up a court appearance.  Call it what you like, Chief Judge Cleary said that the $100.00 was punitive because it was intended to punish Mr. Cascarano's failure to appear at a hearing.  This behavior did not occur in the trial court's presence so if it is contempt it is constructive contempt.  A charge of constructive contempt may not be punished summarily.  Rather, the state must prosecute constructive contempt at which the alleged contemnor is entitled to a trial by jury and proof beyond a reasonable doubt.  Whether Mr. Cascarano's failure to appear - or have a colleague appear in his stead - was contemptuous or excusable is a jury question.

A Rule 27 Motion That Really Attacks the Underlying Conviction is Not a Request to "Correct Sentence" Under the Rule

Wayne v. State of Minnesota, Minn.S.Ct., 10/14/2015.  Over the years, Mr. Wayne has filed post convictions petitions nearly too innumerable to count.  This is number eight.  Mr. Wayne styled this one, "Motion for Correction of Sentence," hoping to sneak it in under Rule 27.03, subd. 9, which currently does not have a limitations term nailed to it.  Mr. Wayne, however, was too clever by half for both the trial court and for Justice Stras.

What Mr. Wayne was complaining about only tangentially had anything to do with his sentence.  He's serving a life sentence for the stabbing death of Mona Armendariz, back in 1987.  He said that the trial court had erred by failing to instruct the jury on a lesser-included offense and that this error eventually led to a sentence longer than was "authorized by law." Well, both the trial court and Justice Stras called Mr. Wayne out on this. Both said that what he was really complaining about was the manner in which the jury convicted him and not the manner in which the trial judge then sentenced him.  That made his pleading the equivalent of a post conviction petition, and that petition is barred by the two year limitations period unless Mr. Wayne can show an exception to it.

Because Mr. Wayne was hoping to fly underneath the post conviction statute's limitations radar his pleadings here never even mentioned either that statute or any of its exceptions.  Having failed to do so, there was no abuse of discretion by the trial court in summarily denying the request for relief.

Refusal to Submit to Warrantless DWI Blood Draw Unconstitutional

State v. Trahan, Minn.Ct.App. 10/13/2015.  Petition For Further Review GRANTED (11/25/2015).  Just when it looked like all this McNeeley/Bernard/Refusal/DWI litigation was winding down here comes another bender.  This time it’s a refusal to consent to a blood draw.  Mr. Trahan argued that the test refusal statute is unconstitutional as applied to him because it violates his substantive due process by criminalizing his refusal of an unconstitutional search of his blood.

Just a few months ago the supreme court said in State v. Bernard, 859 N.W.2d 762 (Minn. 2015) that a warrantless breath test is constitutional because it is a search incident to a lawful arrest.  Bernard, however, does not apply to refusal to submit to a blood draw.  And, even the state conceded here that a blood draw would not be justified under the search incident exception to the warrant requirement.  Instead, the state said that there were exigent circumstances, another exception to the warrant requirement.  State v. Stavish, ___ N.W.2d. ___ (Minn. 2015).  The court of appeals doesn’t agree, saying that the “totality of circumstances” for Mr. Trahan was nothing more than a garden variety DWI arrest.  In particular, the court declined to expand Stavish by saying that the two hour statutory time frame within which to acquire an exemplar was, itself, an exigency sufficient unto itself to obviate the need for a warrant.

Having found no justification for not obtaining a warrant, the court then looks at the substantive due process claim.  The right to be free from unreasonable searches is a fundamental right and is thus subject to strict scrutiny.  The court recognizes the state’s compelling interest in highway safety but concludes that the state has not shown that the test refusal statute is sufficiently narrowly tailored to serve that interest.  The state, the court said, has other viable options to address drunk driving:  ask the driver to submit to a breath test; prosecute for driving under the influence, which doesn’t require a chemical test; or get a warrant.  Thus, the court concludes:

We conclude that criminalizing the refusal to submit to a warrantless blood test “relates to the state’s ability to prosecute drunk drivers and keep Minnesota roads safe,” Bernard, 859 N.W.2d at 774, but it is not precisely tailored to serve that compelling state interest. It therefore fails strict-scrutiny review.

Judge Ross dissents.  He writes this lengthy libertarian opinion that he dearly hopes will be the springboard from which the Supreme Court will upend the majority’s fuzzy, feel-good reasoning.  Ross says that the majority’s insistence on a warrant for a blood draw makes the fourth amendment a sword instead of a shield.  Not only that.  The majority lets the fourth amendment back out onto the highways after the legislature had put it in the garage.  The refusal statute, it turns out, trumps the fourth amendment.  The statute empowers the drunken driver to “just say no” and there’s nothing the trooper can do about it.  The cost?  A mere sixty or so months in prison.

10/8/2015: No Supreme Court Published Criminal Opinions

10/6/2015: No Court of Appeals Published Criminal Opinions