Court Ducks Question Whether Fifth Amendment Prohibits Testimony About a Defendant's Post Arrest, Pre-Miranda Silence During Squad Car Ride to Jail

State v. Lilienthal, Minn.S.Ct., 2/1/2017.  Without objection, during the state’s case in chief the prosecutor elicited testimony from an officer that following Mr. Lilienthal's arrest and placement in a locked squad car but before any Miranda warning he remained silent. SCOTUS has not addressed whether the Fifth Amendment prohibits evidence of a defendant’s post-arrest, pre Miranda silence. The federal circuits are evenly split.  Because there was no contemporaneous objection to the admission of this testimony, the appellate review standard is "plain error."  Because the federal circuits are split and SCOTUS hasn't said Justice Hudson could proclaim that any error in the admission of such evidence is not plain, under the “plain error” doctrine, and the analysis goes no further.

Mr. Lilienthal did timely object to the prosecutor’s two references to this silence during closing argument.  In keeping with its practice of punting whenever possible and eschewing guidance to the lower courts, the Justice says that even if these references were error they were harmless beyond a reasonable doubt.  End of discussion.

There are two end results, one neutral and the other not so much. The neutral end result is that the court consumes a lot of ones and zeros to produce an uninformative fourteen page opinion that simply doesn't answer the question that had prompted them to take the case in the first place.  It's really important, nonetheless, to keep in mind that because the court ducked the question, it remains unanswered whether evidence of post arrest, pre Miranda silence is admissible. 

The not good end result is that the Justice incorrectly suggests that the answer would be “yes”.  She says this based on a SCOTUS case from 2013, Salinas v. Texas, 133 S.Ct. 2174 (2013) in which Justice Alito said that the state may introduce a defendant’s silence to the one of many questions asked during a non-custodial interrogation. Alito said that a response of silence to a question is not the invocation of any Fifth Amendment privilege and so no error occurred in admitting testimony about that silence. 

Here, there was no interrogation, just a car ride in which Lilienthal kept his mouth shut because no one was talking to him.  Officers arrested Lilienthal somewhere up on the Iron Range and then drove him to jail in Duluth.  During the ride to jail, Lilienthal said nothing except to say that he didn’t need medical attention.  Other than that he wasn't asked any questions:

The record provides no evidence to indicate that Lilienthal ever made a statement in response to his arrest, except to deny that he needed medical attention. Deputy Feiro did not interrogate Lilienthal or read him a Miranda warning before he drove Lilienthal to the jail in St. Louis County.

This is a horrific opinion that some prosecutors and judges will surely misread and misapply.  Bring the popcorn because juries may soon be transfixed by squad videos supposedly indicative of guilt of arrested suspects riding silently in the back of the squad on the way to jail.

For Sex Offenders Serving a Life Sentence "Minimum Term of Imprisonment" Before Eligible for Release Consideration is a Guidelines Number

Rushton v. State, Minn.S.Ct., 1/25/2017.  Certain repeat sex offenders are subject to a statutory requirement of a life sentence with possibility of release.  Minn. Stat. 609.3455, subd. 4. Subdivision 5 of this statute directs the district court to “specify a minimum term of imprisonment, based on the sentencing guidelines or any applicable mandatory minimum sentence” that “must be served before the offender may be considered for supervised release.” Minn. Stat. § 609.3455, subd. 5. Mr. Rushton is serving such a life sentence with possibility of release.  He thought, however, that "minimum term of imprisonment" meant two-thirds of his presumptive guidelines sentence.  There's a statute that says just that, Minn.Stat. 244.101, subd. 1(1); "minimum term of imprisonment" is defined as "equal to two-thirds of the executed sentence."

Justice Chutich, however, thought that the more specific directive of 609.3455, subdivision 5 controlled.  The court still had to interpret the phrase "minimum term of imprisonment," which it did by saying that the language of the statute was unambiguous.  The reference to the guidelines meant that the trial court was required to determine the offender's criminal history score on the two axis and pick a number from the resulting box.  That number would be the "minimum term of imprisonment" that the offender would have to serve before he could be considered for release.

The court was clear in saying that this was the drill for sex offenders subject to the life sentence under 609,3455.  For everyone else "minimum term of imprisonment" means two-thirds of the actual sentence:

Nothing in our opinion today should be read as altering the general definition of “minimum term of imprisonment” contained in section 244.101 or Minnesota Sentencing Guidelines 1.B.7 for cases not involving a mandatory life sentence under Minnesota Statutes § 609.3455, subd. 5. As we stated in Hodges, “[i]n most cases, the minimum term of imprisonment ‘is the period of time equal to two-thirds of the inmate’s executed sentence.’ ” 784 N.W.2d at 829 n.2 (emphasis added) (quoting Minn. Stat. § 244.01, subd. 8). But, in cases involving a mandatory life sentence for certain repeat sexual offenders, Minnesota Statutes § 609.3455, subd. 5, and Minnesota Sentencing Guidelines 2.C.3(a)(1) provide a different method for calculating a minimum term of imprisonment. 

Trial Court Did Not Impermissibly Inject Itself Into Plea Negotiations

Wheeler v. State, Minn.Ct.App., 1/23/2017.  The court of appeals tackles the question when does the trial court get too far into the weeds of plea negotiations?  Ms. Wheeler pled guilty to aiding and abetting second degree unintentional murder.  The state had initially charged her with intentional second degree murder.  Two of her children witnessed part of the murder and the trial court made it known to the parties that the idea of these kids having to testify against their mother didn't sit too well.  So, he instructed the parties to make a good faith effort to reach a resolution and to keep it apprised of any movement.

The parties kept negotiating right up to and continuing after the start of trial.  Just before trial the judge let it be known that a plea to manslaughter in the second degree, even with a double departure sentence was unacceptable.  After the first day of trial the judge stated that he'd heard that the state was willing to offer an unintentional second degree murder with some yet to be determined sentencing range within the applicable guidelines box but that Ms. Wheeler had declined that offer.  In actuality, she and her attorney hadn't yet discussed it.  During the weekend recess, Ms. Wheeler's attorneys notified the court that that she would be willing to plead guilty to aiding and abetting second degree unintentional murder, with a guidelines sentence to be determined by the trial court. When the trial resumed, however, Ms. Wheeler entered a guilty plea to that second degree unintentional murder but with a specific sentencing range of 128 to 180 months.  The trial court accepted that plea.  At sentencing the trial court imposed a sentence of 172 months.

After a while, Ms. Wheeler filed a post conviction petition in which she said she was entitled to withdraw her guilty plea because the trial court had improperly participated in the plea negotiations.  The court summarily denied the petition.

Here's how the court has described the role of the trial court in plea negotiations:

The ultimate judicial responsibility must be to make reasonably certain that a person innocent of any crime has not been improperly induced to plead guilty to a crime. It is likewise a judicial responsibility to protect society against a defendant’s being permitted to bargain for a plea excessively lenient for the gravity of the crime apparently in fact committed. Although the court should neither usurp the responsibility of counsel nor participate in the plea bargaining negotiation itself, its proper role of discreet inquiry into the propriety of the settlement submitted for judicial acceptance cannot seriously be doubted. 

State v. Johnson, 279 Minn. 209, 156 N.W.2d 218 (1968).  

The court of appeals said that a trial court crosses the line into impermissible interjection when it induces a guilty plea by a promise of a particular sentence, or when it imposes plea terms against the objections of a party.  Some examples include:

A district court reversibly errs when it induces a guilty plea by a promise of a particular sentence, or when it imposes plea terms against the objections of a party. In Melde, we held that the district court improperly inserted itself into plea negotiations when it told the defendant that it would impose a 46-month executed sentence if he affirmed his guilty plea after the district court had rejected a proposed plea agreement. 778 N.W.2d at 379. In Anyanwu, we held that the district court erred when it promised and gave the defendant a 210-month sentence over the prosecutor’s objection. 681 N.W.2d at 413, 415. We stated that “the district court directly and unequivocally promised the defendant a particular sentence in advance, and forced the plea bargain on the prosecutor.” Id. at 415. In Vahabi, we held that the district court impermissibly participated in plea negotiations when it sentenced the defendant in a manner objected to by the state, and which led us to conclude that the “[t]he parties to [the] plea agreement were the court and the defendants, not the prosecution and the defendants.” 529 N.W.2d at 361. And in Moe, we held that the district court impermissibly inserted itself into plea negotiations when it offered the defendant a downward departure from the sentencing guidelines over the prosecutor’s objection, if the defendant cooperated with the police in an unrelated matter. 479 N.W.2d at 429. 

Ms. Wheeler said that the court had facilitated a plea agreement by indicating that it would not sentence at either the top or the bottom of the sentencing range.  The was not, says the court of appeals, an unequivocal sentencing promise that a trial court can't make.  She also said that the trial court impermissibly suggested that the state offer an amended charge of second degree unintentional murder. The court of appeals seem to think that this was a closer call but decided that the court hadn't really extended a plea offer, or if it did Ms. Wheeler rejected it. The record supported the conclusion that it was the state that had initially offered the second degree unintentional murder plea, not the court.  Finally, Ms. Wheeler said that the trial court impermissibly pressured the parties to enter into a plea agreement so that her children would not have to testify against her at trial.  The court of appeals concluded that this was really nothing more than fair comment if not part of the court's responsibility to monitor plea negotiations. nb tgtbg00121

In the Absence of Ambiguity The "Plain Meaning" of an Ordinance Controls

State v. Vasko, Minn.S.Ct., 1/18/2017. What better way is there to drive home the company line on the proper way to construe a statute than the Lester Prairie City "blight" ordinance?  Ms. Vasko was keeping a maroon Oldsmobile in her front yard; the tabs had been expired for years.  It being a quiet day in Lester Prairie the police chief took an interest in Ms. Vasko's front yard.  Eventually, the chief cited Ms. Vasko for violating the city's ordinance - did I mention that the city code is a whopping three hundred sixty-three pages, not bad for a city of 1,690 - against keeping junked cars in one's front yard. Here's what it says:

It shall be unlawful for any person . . . occupying or owning private property within the City of Lester Prairie to keep or permit to be kept any junked or abandoned vehicles or other scrap metal on such private property . . . for a period in excess of thirty (30) days without a special use permit granted by the City Council. 

Let's call this first section of the ordinance the "special use permit" section.  That's because there's another section - let's call it the "general blight" section - that identifies all manner of conditions that in the city's considered opinion constitute "blight or blighting factors," including junk vehicles and poisonous plants. This "general blight" section requires the city to give written notice to the property owner to remove the blight condition within ten days. Both sections have a penalty provision, which pronounces that it is a misdemeanor to violate "this ordinance."

The city cited only the "special use permit" language in the citation that it issued to Ms. Vasko.  Ms. Vasko took the city to trial; she said that because she had been moving the Oldsmobile in and out of her garage there was no continuous thirty days during which the car affronted the city sensibilities; and, she didn't get her ten day notice.  (She apparently fabricated a letter from the city clerk that appeared to be a "special use permit, but we don't need to go there.) She lost but the trial court imposed a petty misdemeanor sentence. Undaunted, she appealed to the court of appeals, which reversed the conviction; that court read the ordinance to create a single crime which in its view the state hadn't proved.  Justice Chutich reinstates the conviction.

The Justice said that the ordinance creates two separate crimes:  the "special use permit" crime and the "general blight" crime.  Each has its own penalty section and thus each stands separate from the other.  The court of appeals was wrong to determine that the ordinance was ambiguous and thus had no business construing it the way it did.

And the company line:

We review issues of statutory interpretation de novo. Nelson, 842 N.W.2d at 436. The purpose of statutory interpretation is to ascertain the intent of the Legislature. Christianson v. Henke, 831 N.W.2d 532, 536 (Minn. 2013). When interpreting a statute, “we give words and phrases their plain and ordinary meaning.” Premier Bank v. Becker Dev., LLC, 785 N.W.2d 753, 759 (Minn. 2010) (citing Minn. Stat. § 645.08 (2016)). “If a statute is unambiguous, then we must apply the statute’s plain meaning.” Larson v. State, 790 N.W.2d 700, 703 (Minn. 2010). If, however, a statute has more than one reasonable interpretation, then it is ambiguous, and we may apply the canons of statutory construction to determine its meaning. State v. Hayes, 826 N.W.2d 799, 804 (Minn. 2013).

No Error in Refusal To Instruct Jury on Cross Racial Identification

State v. Thomas, Minn.Ct.App., 1/17/2017.  A white male identified Mr. Thomas, a black male unknown to the white male, as the person who held him up at gunpoint.  At trial Mr. Thomas requested an instruction on cross racial identification, the wording of which isn't pertinent to the opinion.  The defense cited to some opinions from other states, and to some of the scientific literature that has studied the reliability of such identifications, but there was no expert testimony offered in support of the request.  The trial court declined the request and the court of appeals upholds that decision.

The court of appeals said that it was up to the supreme court to modify the standard jury instruction on identification testimony. That would have been enough to affirm the trial court's decision, but the court decided to dig up some really old cases - well before decades of research on the perils of eye witness identification - to reaffirm the antiquated notion that such things as cross examination, proper jury instructions, the burden of proof, jury unanimity are all more than adequate to safeguard against a conviction based on a false eye witness identification.

There are a couple of things that the court of appeals did not mention. Just a few years ago the supreme court rejected a challenge to the refusal of the trial court to admit the very kind of expert testimony that was absent for Mr. Thomas.  State v. Mosley. Second, according to the National Innocence Project, eyewitness misidentification is the greatest contributing factor to wrongful convictions proven by DNA testing.  Read about that here.

Compelling a Defendant to Provide Fingerprint In Order to Unlock Cell Phone Not A Fifth Amendment Violation

State v. Diamond, Minn.Ct.App., 1/17/2017.  Police arrested Mr. Diamond on suspicion of burglary.  Following his arrest, police obtained and executed a search warrant to seize Mr. Diamond's shoes and cell phone. Then, the police got another warrant to search the contents of the cell phone, only they were unable to unlock it.

So, the state got an order from the trial court compelling Mr. Diamond to provide his fingerprint in order to unlock the phone. Mr. Diamond complained that this violated his Fifth Amendment right not to incriminate himself.  Both the trial court and the court of appeals disagreed with that assertion.

Before the advent - or at least the ubiquitous proliferation - of cell phones, the U.S. Supreme Court said that the Fifth Amendment privilege applies to communications.  A defendant's communication must, itself, explicitly or implicitly, relate a factual assertion or disclose information.  Doe v. United States, 487 U.S. 201 (1988). Fingerprints, blood samples, voice exemplars, handwriting specimens may be obtained from a defendant against his will.  The court declines to make an exception for cell phones.  So, it may be more convenient to use a fingerprint to lock/unlock that cell phone but it won't keep the wolves at bay.

Step Grandparent-Step Granddaughter Relationship Is "Significant Relationship" under CSC Laws

State v. Reyes, Minn.Ct.App., 1/9/2017.  Mr. Reyes sexually assaulted his step granddaughter.  The state charged him with criminal sexual conduct based on the age of the step- granddaughter and based on a "significant relationship."  Mr. Reyes challenged that "significant relationship" allegation, saying that the statute's definition of that term did not extend to step _ relationships:

A “significant relationship” is defined as a circumstance in which the actor is “any of the following persons related to the complainant by blood, marriage, or adoption: brother, sister, stepbrother, stepsister, first cousin, aunt, uncle, nephew, niece, grandparent, greatgrandparent, great-uncle, [or] great-aunt.” Minn. Stat. § 609.341, subd. 15(2).

Mr. Reyes argued, "Read the statute; it doesn't include step grandparents."  The state said, "Read the statute; the phrase "related by blood, marriage, or adoption" encompasses step grandparents because they are grandparents related by marriage."  The court of appeals liked both of those arguments, so it declared that the statute was ambiguous. Venturing out on its own devices - known as statutory construction - the court had no difficulty concluding that the better policy was to include step grandparents into the mix.

The state also wanted to introduce expert testimony to explain why the step granddaughter delayed for some time in reporting the abuse and to explain some of her other behavior.  Mr. Reyes objected, saying that this was nothing more than bolstering the step granddaughter's credibility. Mr. Reyes made this objection pretrial; the court held a hearing on the objection pretrial but deferred a ruling until during the trial.  Mr. Reyes did not renew his objection to this expert's testimony once the trial court said it could be admitted; this left his appellate issue at the mercy of the plain error standard.  This allowed the court of appeals to uphold the admission of the testimony because that trial ruling was within the trial court's discretion, which the court concluded had been properly exercised.  In large part the court reached this conclusion by reliance upon a 1987 case, State v. Hall, 406 N.W.2d 503 (Minn. 1987).  There, the court had upheld expert testimony on the characteristics commonly exhibited by sexually abused adolescents. 

Court Rejects Constitutional Challenges to Statutory Mandatory Restitution to Identify Theft Victims

State v. Rey, Minn.Ct.App., 1/9/2017.  The trial court ordered Mr. Rey to pay $1,000.00, the mandatory statutory restitution amount, to each of sixty-six identity theft victims.  Mr. Rey objected on various constitutional grounds, all of which the trial court, and now the court of appeals rejected.  Here are the four questions that the court addressed:'

I. Does the minimum-restitution provision in Minnesota Statutes section 609.527, subdivision 4, violate Rey’s substantive due-process rights?

II. Does the minimum-restitution provision in Minnesota Statutes section 609.527, subdivision 4, violate Rey’s procedural due-process rights?

III. Did the district court fail to consider Rey’s ability to pay before ordering restitution?

IV. Is the minimum-restitution provision in Minnesota Statutes section 609.527, subdivision 4, an unconstitutional fine?

The court answered, No, to each of these questions.

Defendant Has Right to Attend Restitution Hearing

State v. Rodriguez, Minn.Ct.App., 1/9/2017. Mr. Rodriguez challenged an award of restitution.  The court scheduled a hearing on the challenge. For whatever reason Mr. Rodriguez was not brought in from whatever prison he was housed to attend the hearing.  The court held the hearing anyway, contending that Mr. Rodriguez had waived whatever right he had to attend the hearing.

A few years back the court of appeals held that a defendant has a right to counsel at a restitution hearing.  State v. Maddox, 825 N.W.2d 140 (Minn.Ct.App., 2013.  It seemed more than reasonable, if not logical, to extend that right to the right to be present at a restitution hearing.  On the waiver question, regardless of whose job it was to haul Mr. Rodriguez in from prison, any "waiver" had to have been made personally by Mr. Rodriguez.  That not being the case, there was no valid waiver.  

That said, holding the hearing in Mr. Rodriguez' absence was still subject to a harmless error analysis; the court declined to take up the question whether any error was structural and thus requiring automatic reversal.  The court concluded that in this case the error was not harmless.  So, Mr. Rodriguez gets a redo on his restitution challenge.

Rule of Criminal Procedure Regarding Discretionary Jury Sequestration Takes Precedence over Statute's Mandatory Sequestration Requirement

State v. Drew, Minn.Ct.App., 1/3/2017.  Mr. Drew went to trial on the state's charge of being an ineligible person in possession of a firearm.  It was a two day trial.  Before retiring to deliberate the trial court told the jurors that they would deliberate until 4:30 p.m. and then be released until the following Monday.  As the appointed hour approached, the jury sent out a note stating that they were "100% sure that they are unable to reach a unanimous verdict." The judge told them to keep at it until 4:30 and that they would then be released until Monday.  After the jury left the courtroom Mr. Drew said he wanted the jury sequestered for the weekend.  The trial court denied that request.

There is a conflict between the criminal rules, 26.03, subd. 5(1) and the statute, 631.09.  The rule gives the trial court discretion whether to sequester a jury; the statute says that once a jury retires to deliberate they must be kept together until they reach a verdict. The court of appeals concludes that the rule takes precedence because the statute is procedural, rather than substantive.  A court rule that conflicts with a procedural rule takes precedence.  

Mr. Drew also make a couple of complaints about evidentiary rulings. However, because there was no objection during the trial "plain error" is the standard of review, which Mr. Drew could not meet.

No Error in Excluding Evidence of Past Bad Acts of Victim in Support of Self Defense Claim

State v. Zumberge, Minn.S.Ct., 1/4/2017.  Mr. Zumberge shot and killed his neighbor, Todd Stevens, and shot and wounded Mr. Steven's girlfriend, Jennifer Clevon.  Stevens and Clevon regularly fed deer who came into their yard, a practice that Mr. Zumberge didn't approve.  On the day of the shooting Mr. Zumberge's wife, Paula got into a yelling match with Clevon, who was in her yard across the street.  Stevens came over to Clevon.  Mr. Zumberge grabbed a shotgun, climbed out a basement window and from the back corner of his house shot Stevens and Clevon.  Mr. Zumberge claimed self defense; he claimed to have lip-read Stevens threaten to kill Paula, and he claimed that he saw Stevens reach for his belt. Stevens had a phone holder attached to his belt but was not otherwise armed.  A jury rejected the self defense claim and convicted Mr. Zumberge of the homicide and attempted homicide.

Mr. Zumberge complained on appeal that the trial court had denied him the right to present a complete defense by excluding testimony of a laundry list of past bad acts of either Stevens or Cleven, offered to prove that he had a reasonable fear of great bodily harm from Stevens.  Such evidence is admissible only if Mr. Zumberge proved that he knew of the specific acts at the time of the shooting, and the acts "could legitimately affect a defendant's apprehensions." State v. Matthews, 221 N.W.2d 563 (Minn. 1974).  Evidence of such acts must also be relevant and more probative and prejudicial.

Justice Lillehaug concludes that the excluded evidence was inadmissible for one of three reasons:  it was irrelevant, Mr. Zumberge was unaware of it at the time of the shooting, or it was inadmissible hearsay.  In large part, the Justice said that Mr. Zumberge simply was unaware of the various specific acts at the time of the shooting.  In addition, Mr. Zumberge, himself, testified about a lot of the events so anything else was cumulative.

Mr. Zumberge also complained that the trial court should have given an instruction on murder in the third degree.  Every lesser degree of murder is an included offense, so the real battle is whether a defendant is entitled to any of those lesser included offense instructions based on the evidence presented at trial:

A lesser-included-offense instruction must be given when (1) the lesser offense is included in the charged offense, (2) the evidence provides a rational basis for acquitting the defendant of the offense charged, and (3) the evidence provides a rational basis for convicting the defendant of the lesser-included offense. State v. Dahlin, 695 N.W.2d 588, 598 (Minn. 2005)

Third degree murder is "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life ..." and so forth.  This offense only covers acts “committed without special regard to their effect on any particular person or persons; the act must be committed without a special design upon the particular person or persons with whose murder the accused is charged.” State v. Wahlberg, 296 N.W.2d 408, 417 (Minn. 1980). Third-degree murder “cannot occur where the defendant’s actions were focused on a specific person.” State v. Barnes, 713 N.W.2d 325, 331 (Minn. 2006).  

Well, Mr. Zumberge snuck out a basement window, peeked around the corner of his house and took aim at Mr. Stevens.  Justice Lillehaug thought that looked like Mr. Zumberge was "focused on a specific person."

Body Camera Belies Claim that Witness Statement was "Excited Utterance"

State v. Plevell, Minn.Ct.App., 1/3/2017.  The state charged Mr. Plevel by indictment with first degree premeditated murder for the shooting death of his x-girlfriend.  Mr. Plevel moved to dismiss the indictment, arguing, among other things, that the evidence presented to the grand jury was insufficient to support the charge. Specifically, Mr. Plevell focused on an officer's summary to the grand jury of statements of witnesses who did not testify at the grand jury.  He also said that a summary of a statement of the deceased's current boyfriend - who was standing right next to the x when the shooting occurred - was also improperly admitted during the grand jury hearing.

Mr. Plevell said Rule 18.05, subd. 1 requires that an indictment be based on evidence that would be admissible at trial.  He's correct. The officer's summary to the grand jury of witness statements was, he said, again correctly, was hearsay not admissible under any exception to the exclusion of hearsay and not authorized by the rules that govern grand jury proceedings.  The grand jury rules permit receipt of hearsay testimony about documents, etc., but that rule does not cover "documents" that merely summarize what witness said.  So, the officer's summary of those statements would be error unless the statements thus summarized would be admissible at trial.

The state said that the summary of the statements of the witnesses who did not testify to the grand jury would be admissible at trial as prior consistent statements.  The court of appeals essentially responds by saying that, well, that may be, but at this point that's totally speculative. The state simply can't show that it can satisfy the evidentiary requirements under Evidence Rule 801(d)(1)(B):

A statement properly admitted under rule 801(d)(1)(B) operates as substantive evidence. See Minn. R. Evid. 801(d)(1) comm. cmt. But rule 801(d)(1)(B) has been interpreted as requiring the district court to make a threshold determination of whether there has been a challenge to the witness’s credibility before the prior statement will be admitted. State v. Bakken, 604 N.W.2d 106, 109 (Minn. App. 2000) (citing State v. Nunn, 561 N.W.2d 902, 908-09 (Minn. 1997)), review denied (Minn. Feb. 24, 2000). The district court must also determine whether the statement would be helpful in evaluating credibility. Id. at 109. “[A] prior consistent statement might bolster credibility by showing a fresh complaint, obviating an improper influence or motive, providing a meaningful context, or demonstrating accuracy of memory.” Id. Finally, the prior statement and the trial testimony must be consistent. Id.

As to the summary of the current boyfriend's statement, the state said that it was an excited utterance.  However, the body camera footage of the statements belied the claim that the boyfriend was excited - about anything:

The current boyfriend was standing next to the woman when she was shot and some of his statements relate to that startling event, but in all of the body camera videos, the boyfriend does not appear to be under stress caused by the event. Cf. State v. Bauer, 598 N.W.2d 352, 366 (Minn. 1999) (stating hearsay statement was admissible as excited utterance where declarant’s condition, “extremely agitated, upset, and afraid,” indicated she was still under stress caused by the event at the time the statement was made). Because the boyfriend’s statements do not appear to have been made while he was under the stress of the event, the state has not shown that the statements will be admissible at trial under the excited utterance exception. 

Despite these errors the court concludes, nonetheless, that the state did present sufficient evidence to support the indictment.

Trespass "Leave and Don't Return" Subsection Requires Proof of Both

State v. Kremmin, Minn.Ct.App., 1/3/2017.  One of the ten ways to commit trespass is to return "to the property of another within one year after being told to leave the property and not to return, if the actor is without claim of right to the property or consent of one with authority to consent."  Minn.Stat. 609. 605, subd. 2(8).  Mr. Kremmin and his estranged spouse co-owned a horse who lived at S.S.'s place.  Mr. Kremmin went over to S.S.'s place and fetched the horse back to his farm.  S.S., upon discovering the missing horse, went to Mr. Kremmin's farm.  S.S. told Mr. Kremmin never to return to her property.  Mr. Kremmin ignored this missive and later went onto S.S.'s property (but apparently did not disturb the horse.)

The state charged Mr. Kremmin with trespass under this leave and never return definition of the crime.  At the end of the state's case Mr. Kremmin said that he was entitled to a judgment of acquittal because the state had failed to prove that S.S. told him both to leave the property and not to return to the property.  The trial court denied this motion for a judgment of acquittal.

The court of appeals reverses.  The state does have to prove under this leave and don't return definition of trespass that while on the property the offender was told to leave and was told not to return. Because no one disputed that Mr. Kremmin was on S.S.'s property when she told him to leave he could not have been told to depart that property as the statute requires.  

Fourth Post Conviction Petition Claims Untimely Under Statute's Limitations Restrictions

Hooper v. State, Minn.S.Ct., 12/14/2016.  This is Mr. Hooper's fourth post conviction petition.  You can read about the third one here.  This go round he claims to have a recanting witness that entitled him to a new trial.  He has to rely upon one of the statutory exceptions to the two year limitations period; he picks "interests of justice" and "newly discovered evidence".  The district court denied the petition both as untimely under the statute and as barred under the Knaffla rule.

Justice G. Barry Anderson agrees that the petition's claims are untimely under the statute and not within the two exceptions that Mr. Hooper utilized.  The Justice goes on to address one of the Knaffla exceptions - also "interests of justice" - and concludes that Mr. Hooper has not met that exception either because his claim does not have "substantive merit".  This is all window dressing, however, as the court continues to duck the question whether the Knaffla exceptions survived the recodification of the post conviction statute.

Post Conviction Statute Still Precludes Relitigation of Issues Raised on Direct Appeal

Gail v. State, Minn.S.Ct., 12/28/2016.  Mr. Gail is serving a life sentence with possibility of release.  Mr. Gail shot and killed Yvain Braziel during a drug deal.  Mr. Gail has been consistently making the argument - too clever by half at least is the judicial sentiment up and down the system - that the state only proved that he was buying drugs and not selling them as he maintains the statute requires:

The State was required to prove that Gail “cause[d] the death of a human being with intent to effect the death of the person or another, while committing or attempting to commit . . . any felony violation of chapter  152 involving the unlawful sale of a controlled substance.” Minn. Stat. § 609.185(a)(3) (emphasis added).

When Mr. Gail raised this issue yet again in his second post conviction petition the district court summarily denied the petition, relying upon Minn.Stat. 590.04, which states that the court “may summarily deny a petition when the issues raised in it have previously been decided by the Court of Appeals or the Supreme Court in the same case.”  That was more than enough for Justice Stras; the court affirms the summary denial.

Assisted Suicide Statute is Neither Facially Nor As Applied Unconstitutional

State v. Final Exit Network, Inc., Minn.Ct.App., 12/19/2016.  The Minnesota Supreme Court has construed the assisted suicide statute to permit prosecution for assisting suicide, but not for advising and encouraging suicide.  State v. Melchert-Dinkel.  Someone who wishes to partake of the services that Final Exit Network provide must first survive, so to speak, a vetting process in order to become a "member." The guys at Final Exit will then assign a member an "exit guide" to do such things as direct the member where to purchase the gear that will be needed to effectuate the suicide.  The exit guide rehearses the procedure with the member, attends the procedure and then secrets away the gear.  The exit guide never physically assist the member in ending his or her life.

Melchert-Dinkel said that the state can prosecute someone for speech or conduct that provides another person with what is needed for the person to commit suicide.  The trial court instructed the jury that:

To “assist” means that [Defendant] enabled [D.D.] through either physical conduct or words that were specifically directed at [D.D.] and that the conduct or words enabled [D.D.] to take her own life. One has not “assisted” where one has only expressed a moral viewpoint on suicide or provided mere comfort or support. 

Relying upon Melchert-Dinkel the court of appeals upholds Final Exit's conviction, rejecting both facial and as applied First Amendment challenges to the statute.  

Court of Appeals affirms grant of new trial because an actually biased juror who had not been adequately rehabilitated served on the jury.

Ries v. State, Minn.Ct.App., 12/19/2016.  It is structural error, requiring automatic reversal, for a trial court to permit a biased juror to sit on a jury.  State v. Logan, 535 N.W.2d 320 (Minn. 1995); State v. Fraga, 864 N.W.2d 615 (Minn. 2015).  Here, the question wasn't whether a juror who served on the panel was biased, she was.  Rather, the question was whether the trial judge had adequately rehabilitated her.

The trial judge denied Mr. Ries’s motion to strike for cause a potential juror who said that she would side with a police officer’s testimony in large part because of her work as a 911 operator; she considered herself as having the officers’ backs.  The trial judge purported to rehabilitate this potential juror and at trial was satisfied that he had done so, allowing the juror to serve.  Mr. Ries did not use one of his remaining peremptory challenges to remove her.  The jury found Mr. Ries guilty.  

Mr. Ries did not appeal his conviction, but eventually he did file a post-conviction petition in which he complained about the seating of this biased juror.  (He also complained, unsuccessfully,  about a suppression ruling.)  Following a post-conviction hearing, however, the post conviction judge (who was the same as the trial judge) reversed himself and granted a new trial because this juror had expressed actual bias and had not been rehabilitated after all.  

The Court of Appeals upheld the reversal of the conviction and grant of a new trial.  The court agreed that this juror had not been rehabilitated. The court reviewed past cases that had addressed the rehabilitation question, pointing out what had been deemed to be rehabilitation and what had not. 

Of equal importance the court also said that it was not necessary for Mr. Ries to have used all of his peremptory challenges in order to preserve the juror bias issue for appeal.  The court relied upon a U.S. Supreme Court opinion for support for that pronouncement, U.S. v. Martinez-Salazar, 528 U.S. 304 (2000).

Court Finds Probable Cause to Support Prosecution Under Actual Possession Theory For Narcotics Found Near Where Defendant Crashed During Police Chase

State v. Barker, Minn.Ct.App., 12/12/2016.  Acting on a tip that Mr. Barker would be returning from Chicago with a load of cocaine and marijuana the cops set up surveillance for his eventual return to the state and apprehension.  On the return drive the informant notified the cops that during a pit stop he had seen Ecstasy pills and marijuana in a white plastic bag in the trunk of the car that Mr. Barker was driving.   When officers tried to stop Mr. Barker's car once he was back in Minnesota Mr. Barker fled, eventually crashing the car.  Officers recovered narcotics in the vehicle, but they also recovered narcotics in a field near where the crash occurred.

The state charged Mr. Barker with multiple counts of possession of narcotics.  The narcotics in play here are the ones the cops found in the ditch.  The state conceded that Mr. Barker did not have constructive possession of these narcotics, but insisted that he had actual possession of them.  The trial court disagreed and tossed the charges for lack of probable cause.  The state took a pretrial appeal and the court of appeals reverses.

The court says that just because an item isn't in a defendant's physical possession at the time of apprehension does not preclude prosecution for actual possession.  The court cited State v. Olhausen, 681 N.W.2d 21 (Min. 2004).  Olhausen agreed to sell an undercover officer one pound of methamphetamine.  Olhausen handed the officer the bag of what the cop believed to be meth, but then took it back and fled.  The supreme court upheld the subsequent conviction for sale and possession of the meth.  The problem is, however, that no one in Olhausen cared a whit about the method of possession.  Rather, the case turned on the absence of any forensic testing of the alleged methamphetamine and on Olhausen's role in preventing that testing.  Applying Olhausen here is thus a bit of a stretch.

Having thus extended Olhausen's holding, the court is then more than confident that there was probable cause to charge Mr. Barker with the drugs found in the ditch.  Along the way, two tidbits:  first, the court applied, without actually holding that it was necessary, the heightened two-step circumstantial evidence standard of review to a probable cause determination:

We have not previously applied this heightened circumstantial evidence test to a probable cause challenge, and we do not decide here that it must be applied in such cases. Nevertheless, we apply this test out of an abundance of caution.

Second, the court pretty strongly signals that the trial court should not instruct the jury on constructive possession  except when the court is convinced that the state cannot prove actual or physical possession. State v. Arnold, 794 N.W.2d 397, 400 (Minn.Ct.App. 2011):

[P]resumably because Arnold was not in physical possession of the drugs when apprehended, the district court instructed the jury only on constructive possession. Id. at 399, 401. On review of Arnold’s conviction, we emphasized that “[t]he purpose of the constructive-possession doctrine is to include within the possession statute those cases where the state cannot prove actual or physical possession.” Id. at 401 (quotation omitted). Although it was “clear” to us that the “evidence of physically handling the drugs prove[d] physical possession,” the jury had been instructed on constructive possession, and we reluctantly addressed the defendant’s sufficiency challenge under that doctrine. Id. at 400-01.

Because Predatory Offender Registration As A Result of a Conviction is a "Collateral Consequence" Failure to Advise Regarding It is Not Ineffective Assistance of Counsel

Taylor v. State, Minn.S.Ct., 12/7/2016.  Mr. Taylor said that his trial counsel had provided ineffective assistance of counsel by not advising him that his conviction for a felony domestic assault would trigger a requirement that he had to register under the predatory offender statute.  He said that just as immigration consequences are not "collateral" neither is registration.  Justice G. Barry Anderson rejects this notion:

The statutory duty to register as a predatory offender is a collateral consequence of a guilty plea. Because a criminal defendant need not be warned of a collateral consequence before entering a guilty plea, the defense attorney’s failure to advise the appellant of the duty to register as a predatory offender did not violate the appellant’s right to effective assistance of counsel under the United States and Minnesota Constitutions.

Not much more to say.

 

A Rule 27.03 Motion To Correct Sentence Is Not Subject to Post Conviction Limitations Term

Reynolds v. State, Minn.S.Ct., 12/7/2016.  Mr. Reynolds pleaded guilty to failing to register as a predatory offender.  A year and a half later, the trial court modified Mr. Reynolds' sentence to include a ten year conditional release term, apparently because he had been assigned to a risk level III.  Four years after that, Mr. Reynolds moved under Rule 27.03, subd. 9 to correct his sentence; he said, and no one disputed his assertion, that the conditional release term could only be imposed if he had either admitted to the risk level III status or a jury had found that status.  A Blakely error.

The district court treated the Rule 27 motion as a post conviction petition and said that it was untimely under the limitations provisions. The court of appeals reversed.  Chief Justice Gildea affirmed the court of appeals.  The court agreed that imposition of the conditional release term in violation of Blakely was not authorized by law.  The court also rejected, on separation of powers, the state's fall back argument that the legislatively enacted two year limitations period for post conviction petitions applied to a judicially created rule of criminal procedure.  And, the court declined to accept the statutory limitations period as a matter of comity:

Based on this analysis, interpreting the exclusivity provision in Minn. Stat. § 590.01, subd. 2, to require application of the postconviction statute’s limitations period to Reynolds’s claim unconstitutionally encroaches on the judicial sentencing power. Even with these constitutional deficiencies, however, we may accept the limitations period in the postconviction statute as a matter of comity. See Losh, 721 N.W.2d at 892. We decline to do so. We previously recognized the importance of Minn. R. Crim. P. 27.03, subd. 9, and refused to acquiesce to a statute as a matter of comity that “could limit a defendant’s ability to obtain relief from an illegal sentence under Minn. R. Crim. P. 27.03, subd. 9.” See Losh, 721 N.W.2d at 892. We reach the same conclusion in this case.

Court Expands Sweep of Assault-Harm to Include All Volitional Acts

State v. Dorn, Minn.S.Ct., 12/7/2016.  Ms. Dorn pushed D.E. when he accused her of being a drug dealer.  It wasn't a hard push; he may have just sort of leaned back then returned to the upright position, like those air-inflated Christmas decorations.  Ms. Dorn then pushed * again.  Still not a hard push but this time D.E. lost his balance, may have stumbled and fell into the embers of a nearby bonfire. The state charged Ms. Dorn with assault in the first degree - D.E.'s injuries met the definition of "great bodily harm - and a jury convicted her.  The judge put her on probation forever instead of sending her to prison.  The court of appeals affirmed the conviction.

Ms. Dorn said what she did wasn't an assault because she didn't intentionally harm D.E. and because her actions did not directly cause D.E.'s injuries.  She said that the statute required proof of some intent to harm D.E.  Justice McKeig rejects this assertion. Assault/harm requires that an individual assault another and inflict great bodily harm.  "Assault" in this instance means the intentional infliction of bodily harm upon another. 

Now, Minnesota's assault statute has always been incredibly broad; it is now breath takenly so.  Justice McKeig has replaced the supposed mental state required of criminal assault - intentional infliction of bodily harm - with any volitional act upon another person.  If that volitional act results in a common law "battery" - the intentional application of unlawful force against the person of another - then the assault statute's requirements are met.  The extent of injury then determines the degree of assault that has been committed.  This is so even when, apparently, the resulting harm from the battery is totally unwitting.  Mischiefly the Justice offers absolutely no guidance on what the outer limits - if, indeed, there are any - of this sweeping expansion of the assault statutes may be. So the next time you think about giving a colleague a congratulatory slap on the back for a job well done, reconsider, because you've just committed a criminal assault. If your colleague isn't paying enough attention, stumbles back and hits her head on, say, a concrete wall, you're off to prison for a felony assault.

Test of Laser That Establishes Accurate Measurement of Known Distance Satisfies Foundation Requirement For Introduction of Speed Evidence

State v. Olson, Minn.Ct.App., 12/5/2016.  An officer ticketed Mr. Olson for speeding, based upon the officer's use of a handheld laser device. Mr. Olson challenged the foundational reliability of the laser device; he said that Minn.Stat. 169.14, subd. 10(a)(4) allows an officer to testify about a reading from a "speed-testing device" only if the officer first establishes that he performed an external test to verify that the device was functioning reliably.  Because the officer had only - and half-assed at that according to Mr. Olson - tested the laser's distance measurement the statute's requirements hadn't been met.  That's because speed is a measurement of both distance and time, and the officer performed no tests to determine that the laser was accurately measuring time.  Instead, the officer limited his testing to measuring a known distance to a stationary object.

Whew.  

The court of appeals said that Mr. Olson didn't understand just how a laser works.  The court said that the laser measures distance "specifically based on the constant speed of light and based on the time it takes for a pulsed, infrared light to reflect off the target and return to the device.  If the laser gets a known distance right then necessarily it have got the time right as well.

Expressions of Hope That An Individual Will Come To Harm Are Not Terroristic Threats

State v. Olson, Minn.Ct.App., 12/5/2016.  A state trooper came upon Mr. Olson parked in his car with its tires on the fog line.  Mr. Olson was shaking, covered in blood and had a golf ball sized lump on his head. One thing lead to another - including a brief chase - and the trooper ended up arresting Mr. Olson for drunk driving.  

Mr. Olson was not pleased with this turn of events:

TROOPER: Minnesota law requires you to take a test to determine if you are under the influence of alcohol.

OLSON: I wouldn’t trust you assholes for nothing. None of you. You are all assholes. I get beat up, I’m hurting, I stopped to make a phone call, and now I’m the dick. Just leave me alone. 

And so on and so forth.  Mr. Olson's parting shot to the trooper was to say, "I truly hope that you are one of the cops that gets their head blown off. ... I hope someone puts a slug  in your head, you loser."

A jury convicted Mr. Olson of terroristic threats.  Both at trial and on appeal he said that his hopes for the trooper's future were not threats and so the state hadn't proved the charge against him.  The Court of Appeals agrees.  The court said that Mr. Olson's statements were not direct threats because they did not communicate that he would act accordingly.  Nor were his statements indirect threats because he did not engage in either verbal or physical conduct that communicated that he would commit future crimes of violence:

We hold that Olson’s statements commenting on recent violent conduct towards police and expressing hope that something similar would happen to the trooper in the future do not constitute threats within the meaning of the terroristic-threats statute when those statements were unaccompanied by additional surrounding statements or conduct demonstrating that future serious crimes of violence could follow. Olson’s conviction for terroristic threats must be reversed because the evidence is legally insufficient.

Stalking Statute Prohibiting Repeated Telephone Calls Not Unconstitutional

State v. Hall, Minn.Ct.App., 12/5/2016.  Upset over his water bill, Mr. Hall placed five calls to a town employee in the middle of night.  Upon discovering that the town office wasn't open, and apparently being "old school", Mr. Hall left five voicemail messages, each more vociferous, obscene and hostile.

The state charged Mr. Hall with stalking for "repeatedly making telephone calls, knowing that the conduct would cause the victim to feel frightened, threatened, persecuted, oppressed, or intimidated and, in fact, causes this reaction. See Minn. Stat. § 609.749, subds. 1, 2(4) (2014)."  Mr. Hall said that his voicemails were protected speech under the First Amendment.  Here's how the court described the first call:

Hall’s first voicemail began with complaints about the mistreatment of neighborhood dogs. As the voicemail continues, his tone became increasingly hostile. He says that “this bullsh-t is going to come to an end.” He tells B.R. that she is “done” and that the locals are waiting for someone like him to “step up to the plate and swing the bat.” He adds, “Your bullsh-t is about to end.” He then described rumors about how B.R. was kicked out of her house for being immoral and how her family had killed a man. He says that “things are going to happen around here real quick, real quick, all done.” He ends the voicemail by insulting B.R.’s husband as a “fat mother f-cker.” The first voicemail is 3 minutes and 25 seconds long and includes more than 20 expletives. 

You get the picture.

The court concludes that the stalking statute includes not just making repeated calls but also the content of those calls.  The court then concludes that the statute is neither overbroad on its face nor as applied.  Because the statute includes a knowledge requirement by the actor, and a harm requirement to the victim, "it is highly unlikely that the statute would sweep a substantial number of constitutionally protected communications within its purview."   And, because Mr. Hall's rant included threats his voicemails were not protected speech, but, rather, were "fighting words."

Officers Had Reasonable Articulable Suspicion To Conduct Dog Sniff of Exterior of Car

State v. Lugo, Minn.S.Ct., 11/30/2016.  The cops were sitting on a "known drug house" outside of which Mr. Lugo was sitting in a car.  After a while Mr. Lugo got out of the car, went into this "known drug house", stayed about twelve minutes, then drove off.  Another set of cops stopped Mr. Lugo.  Mr. Lugo didn't stop right away; rather he pulled into a parking lot, drove across it, turned around, came partially back and finally stopped.  Just before stopping he leaned over in his seat as though he was trying to hide something. Mr. Lugo had recently been arrested for drug possession.  He lied about the identity of the owner of the car.  Last, but not least, he blurted out "Man just take me to jail, please."  

After all that it was time to send in the dog.  Dog sniffed around the exterior of the car and "alerted" to a couple of places.  The resulting search turned up drugs.  Mr. Lugo challenged this search, but limited to bringing in the dog.  On these undisputed facts, Justice Lillehaug concluded that the officer had a reasonable, articulable suspicion that Mr. Lugo was engaged in drug-related criminal activity sufficient to expand the scope of the initial stop to include the dog sniff.

The state had actually lost the suppression hearing in the trial court.  This set up a legal dispute over the proper standard of review when it's the state who is initiating a pretrial appeal.  You can read about that if you're so inclined; suffice it to say that the outcome makes it easier for the state to bring pretrial appeals.

Mysteriously, Justice Stras concurs only in the result.  There's no elucidation of where he parted company with the majority opinion.