Autopsy Reports/Evidence are "Testimonial"

State v. Johnson, Court of Appeals (October 2008)

Mr. Johnson killed one person, shot two others. A jury convicted him of intentional second degree murder, one count of attempted first degree intentional murder, and one count of attempted second degree intentional murder.

The Medical Examiner who testified did not perform the autopsy; in fact, it took two other pathologists to get the job done. Defense counsel did not object to this autopsy evidence, but on appeal, appellate counsel argued that this autopsy evidence violated Crawford. On appeal, because there was no objection at trial, the standard of review is plain error.

A couple of years back, the Supreme Court held that a BCA laboratory report that identified a substance as cocaine was “testimonial” and thus not admissible unless the declarant was unavailable at trial and the defendant had a prior opportunity to cross examine the declarant. State v. Caulfield, 722 N.W.2d 304 (Minn. 2006). In another locally notoriously case, the court held that a hospital laboratory report that had been prepared as part of an autopsy report was “testimonial.” State v. Weaver, 733 N.W.2d 793 (Minn.Ct.App. 2007).

The court concludes that autopsy reports/evidence are “testimonial” under Crawford, rejecting decisions from other jurisdictions that have reached the opposite conclusion. Some of these decisions have adopted a business records approach to autopsy reports, and then determined that Crawford does not reach business records. The Minnesota Court rejects this approach; the court views recourse to a business record analysis as a “back door” to the Roberts reliability factor that Crawford clearly rejected.

Accordingly, admission of the medical examiner’s testimony was plain error, but it was not harmless error.

The trial court imposed consecutive sentences on the two counts of attempted murder. The appellate court says that this was a mistake. The only attempt homicide offense on the permissive consecutive list is attempted first degree murder. The omission of second degree attempted murder prevents the trial court from consecutive sentencing. The court remands for concurrent sentencing.

"Bong Water:" The Court Mixes it up.

State v. Peck, 2008 WL 4472867, Minn.App., October 07, 2008.

Police searched Sara Peck’s house, finding a glass bong and a small bag containing methamphetamine. The liquid inside the bong, which weighed a bit over 37 grams, tested positive for methamphetamine. The weight of the bong liquid got the prosecutor’s eyes watering – the bag was basically nothing – and so he charged Sara with first degree possession, which requires 25 grams or more “of a mixture containing methamphetamine.” M.S. § 152.021, S. 2(1). This was too much for the court to swallow; the trial court dismissed the charge and the state appealed.

So, what’s a “mixture”? Easy. It’s a “preparation, compound, mixture, or substance containing a controlled substance, regardless of purity.” Minn.Stat. § 152.01, S. 9a. Does water that has a bit of meth dregs in it amount to a “mixture”? No.

Bong water, it turns out, is like Chai latte; it’s an “infusion.” A “mixture” must have been prepared for the purpose of drug use, sale, or manufacturing. It is not, as the state argued – and here’s where they really went under – like a swimming pool. The state suggested that if Sara had accidently spilled .01 trams of meth into her swimming pool (do you think the AG really thought that Sara had a swimming pool?) she could be prosecuted for possession over 25 grams of a controlled substance so long as the BCA got there in time to assay the water. (In fairness to the state, it’s not entirely clear just who came up with the swimming pool crime.)

Sometimes, you know what you claim not to know

State v. Linville, Jr., --- N.W.2d ----, 2008 WL 4007428, Minn.App., September 02, 2008

This is truly something only lawyers would fight about. Does the source of your knowledge of your disqualification from possession a firearm shield you from prosecution for possessing a firearm in the face of that disqualification? Here’s the deal.

Mr. Linville picked up his “crime of violence” conviction in September 2003. This conviction made him ineligible to possess firearms. Minn. Stat. § 624.713, subd. 1(b) (2002). He served his term of probation, got his discharge order; that order neglected to check the box that said he was ineligible to possess firearms for the next ten years.

Three months after getting his discharge Mr. Linville is charged with possession of a firearm by an ineligible person. His lawyer gets this charge dismissed on the basis of the erroneously completed discharge order. At that point, Mr. Linville must have thought he had a lifetime pass to possess firearms because a mere four months later he is once again charged with possession of a firearm by an ineligible person. His lawyer again moves to dismiss on the basis of the original, deficient discharge notice.

But wait, not so fast. On this, the second possession by an ineligible charge, does Mr. Linville really lack notice of his ineligibility to possess firearms? Did not the dismissal of the first possession by an ineligible charge clue him in that there had been a mistake on the original discharge order? Must the clerk who accidently omitted that all important check mark on the discharge notice forever bear the equivalent of Hester’s “A”.

In a word, no. This, the court informs us, is based on “a long-held principle in Minnesota that ignorance of the law is not a defense when it would have been possible, had [the defendant] made the effort to do so, to learn of the existence of the prohibition.” State v. Grillo, 661 N.W.2d 641, 645 (Minn. App. 2003), review denied (Minn. 5 Aug. 2008).

A Hot Potato is Still a Potato

In the Matter of the Welfare of: S.J.J., --- N.W.2d ----, 2008 WL 4007434, Minn.App., September 02, 2008.

 

Police stopped an SUV that S.J.J. was driving. There were five others in the SUV: a front seat passenger, three back seat passengers and one cargo passenger. Police found a loaded revolver midway on the floor of the back seat.

S.J.J. told police the he hadn’t realized that there was a gun in the SUV until he saw it being passed around the back seat. When he removed his hat, one of the passengers placed the gun in it. He looked at it, saw that it was loaded, touched the cylinder release, closed the cylinder (with his hat), and returned it to the passenger in the back seat. All the while, the gun was in the hat. A jury convicted him of being an ineligible in possession of the gun.

The Court of Appeals declines to adopt a “fleeting” or “innocent” possession defense. This is in line with federal circuits that have considered this question. [The Seventh Circuit, however, did posit the hypothetical in which an officer’s weapon slips out of her holster onto the ground, whereupon a felon passing by retrieves it and immediately returns it to the officer; that felon, assuming he wasn’t shot first, may have an “innocent” possession defense.] The Seventh Circuit has held that an “innocent possession” defense is available when combined with a justification – necessity, duress or self-defense – defense. U.S. v. Hendricks, 319 F.3d 993 (7^th Cir. 2003).

The Court also concludes that there was sufficient evidence to support the jury’s finding of possession: S.J.J., the court noted, “knew that there was a gun in the stolen car, it was passed to him inside of a hat, and he checked to see if the gun was loaded before handing it back to another passenger.”

There's no authority to attach a no contact order to a CSC prison sentence

State v. Pugh, 753 N.W.2d 308, Minn.App., July 22, 2008

The district court sentenced Mr. Pugh to an executed prison term of 144 months and ten years of conditional release for first degree criminal sexual conduct. The court also ordered that Mr. Pugh have no contact with the victim of the offense.

There is, however, no authority for this no contact order as part of a commitment to prison. The legislature has determined that a person who is convicted of criminal sexual conduct in the first degree may be imprisoned for not more than thirty years or to a payment of a fine of not more than $40,000.00 or both. That’s it. The court rejects the state’s efforts to find authority for the no contact order elsewhere in the criminal statutes. The court also rejects the state’s suggestion that because Mr. Pugh did not object t the no contact order at the time of sentencing he had waived the issue. The court points out that a defendant cannot waive his right to challenge an illegal sentence.

The only misconduct here is the trial court's grant of a verdict of acquittal

State v. McCray, II, 753 N.W.2d 746, Minn., July 31, 2008

The state charged Mr. McCray with first and second degree criminal sexual conduct against the seven year old daughter of his girlfriend. The seven year old’s trial testimony regarding penetration, however, was inconsistent – indeed, just the opposite – of her statement to police so the trial court dismissed the first degree count; penetration was an element of that offense.

The Court of Appeals reversed Mr. McCray’s conviction on the basis of prosecutorial misconduct and remanded for a new trial. The Supreme Court reinstates the conviction. Along the way, it chides the trial court for its dismissal of the first degree count. The court points out that the seven year old’s statement to police had been admitted as substantive evidence under Minn.Stat. 595.02. Consequently, the trial inconsistency in her testimony became a fact/credibility issue for the jury to determine:

Because [the seven year old’s] prior statement alleging penetration was not admitted under the residual hearsay exception, it is unclear how the state’s failure to satisfy the [State v.] Ortlepp, [363 N.W.2d 39 (Minn. 1985)] factors could impact the decision of whether to dismiss the first-degree penetration charge.

Presumably, the court draws this conclusion, in order to chastise the lower court, because trial counsel either failed to object to the admission of the police statement or failed to request a limiting instruction.

Post Conviction: Court says defendant knew what he says was "unknown."

Whittaker v. Minnesota, 753 N.W.2d 668, Minn., July 31, 2008

Two armed intruders - a man in a red jacket with a semi-automatic pistol, and another man with a sawed-off rifle – forcibly entered a residence; the two men demanded money. In an ensuing struggle, the man in the red jacket shot and killed one of the residents. The two men fled but were apprehended a short distance away very soon after the shooting. Mr. Whittaker was wearing a red jacket. The man he was with, Karon Baldwin, refused to testify at Whittaker’s trial, despite a grant of immunity. A jury convicted Mr. Whittaker and the Supreme Court upheld his conviction. State v. Whittaker, 568 N.W.2d 440, 447 (Minn. 1997).

Ten years later, Mr. Whittaker produced an affidavit from Mr. Baldwin which Mr. Whittaker claims exonerates him. In the affidavit, Mr. Baldwin claims that it was he and two other individuals – Christopher Johnson and “Tron” committed the robbery during which the homicide occurred, and that it was Mr. Johnson who was wearing the red jacket. Mr. Baldwin goes on to assert that the three men happened to run into Mr. Whittaker after the homicide, and that Mr. Whittaker exchanged jackets with Mr. Johnson. Mr. Baldwin stated that he refused to testify at Mr. Whittaker’s trial because he wanted to protect Mr. Johnson.

The trial court, after considering the Baldwin affidavit, denied Mr. Whittaker’s post conviction petition without an evidentiary hearing. The Supreme Court affirms that denial. It seems that Mr. Whittaker cannot satisfy the first requirement of the newly discovered evidence rule, that Mr. Baldwin’s information (as contained in his affidavit) was unknown to Mr. Whittaker and his counsel at the time of trial. Information can’t be “unknown” if Mr. Whittaker was present at the time of the events that that Mr. Baldwin purports to describe. Pierson v. State, 637 N.W.2d. 571 (Minn. 2002).

It's Okay (sort of) to tell your client to lie, but be sure to advise her correctly on when to move to withdraw the plea.

Anderson v. Minnesota, 746 N.W.2d 901, Minn.App., April 08, 2008.

Defendant was charged with a gazillion counts of CSC; she was having sex of all kinds with a minor for whom she (and her husband) were foster parents. Four days into jury selection, she plead guilty to one count of CSC III under what turned out to be a false impression that the judge would only give her four months in the workhouse; on the day of sentencing, she learned that the judge intended sending her to prison for forty-one months, rather than to four months in the workhouse. She asked her attorney about withdrawing the plea before sentencing; the lawyer said that this would only piss off the judge and put her at risk of an even higher sentence. She deferred moving to withdraw the plea until after sentencing, which the trial judge promptly denied.

Defendant claimed that her admission of guilt was a lie, urged upon her by her attorney. Between the plea and the sentencing she told everyone who would listen, including the PSI writer, that she was innocent and had only plead guilty to get what she thought, erroneously, would be a four month stretch at the workhouse. On appeal, she argued that she had received ineffective assistance of counsel because (1) her attorney told her to lie during the plea hearing but neglected to tell her to continue to lie between the plea hearing and the sentencing hearing; and (2) her attorney incorrectly advised her not to move to withdraw the plea until after sentencing so as not to annoy the judge. She loses on the first ground but gets a remand on the second..

It turns out that it’s impossible for defense counsel to commit a Strickland violation by advising your client to lie. First, there’s the oath to tell the truth that is administered to the defendant. This overcomes, apparently, any bad legal advice, like don’t tell the truth. Here’s how the court explained this:

Anderson’s sworn duty to tell the truth, as directed by the oath, is too fundamental and obvious an obligation to be dismissed by contrary advice to violate it, even if suggested or encouraged by her attorney.

Second, she suffered no prejudice from the alleged advice to lie. She got what she was seeking: the court’s acceptance of the guilty plea. (That she did not get the sentence she was expecting in return seems to have escaped the court’s notice.)

Third, the trial court made no finding that defense counsel instructed defendant to lie. How could it? The court says that all defense lawyers know that their clients are guilty so if they initially profess innocence during privileged conversations but admit guilt before the court, what’s the problem? Indeed, counsel should be relieved that the defendant has “seen the light,” a vision undoubtedly brought on by the aforementioned oath.

Whether the defendant privately admits guilt or unconvincingly asserts innocence, her counsel’s duty to assess the relative strengths and weakness of the prosecution’s case and the likelihood of success at trial remains the same when advising whether to enter a guilty plea.

Now to the really good part: neglecting to tell defendant to keep up the ruse. This, it turns out, has no constitutional implications whatsoever:

In our review of the case law, we conclude that it would be a significant departure from traditional Sixth Amendment jurisprudence to hold that Anderson’s trial counsel violated her constitutional rights by failing to exact from her a more thorough ruse.

As to ground two, because there is a different legal standard – fair and just versus manifest injustice – the advice to wait until after sentencing to move to withdraw the plea falls below Strickland, so defendant gets a remand for the trial court to reconsider her withdrawal motion under the pre-sentencing standard.

This is great reading. Enjoy.

No automatic right to a new judge on remand for new trial

State v. Dahlin, 753 N.W.2d 300 (Minn., July 24, 2008).

When the appellate court reverses a criminal conviction with a remand for a new trial, who doesn’t consider whether the original trial judge can fairly preside over the retrial? Trial counsel thought not and so sought to remove the judge peremptorily under Rule 26.03, subd. 13(4). The trial judge denied the request; trial counsel sought a writ of prohibition in the court of appeals, which the appeals court denied. It appears that the second trial started before the removal question could be presented to the Supreme Court. A jury convicted him again, the court of appeals affirmed the conviction again. The Supreme Court took review only of the removal issue.

But, can Mr. Dahlin appeal the removal issue as part of the direct appeal of the new conviction? Or, must he have sought review in the Supreme Court in order to have preserved that issue? Can the party who is trying to remove the trial judge really just lay in the weeds (a second) trial and then pounce when the trial doesn’t come out the desired way? The Court says, no: “…[A] party must timely petition this court for review of the denial of a writ of prohibition when the issue involves the right of peremptory removal, and that failure to do so constitutes waiver of further review of the removal issue in this court.”

The Court goes on to review the issue on the merits; it didn’t seem sporting to do its own pouncing. Mr. Dahlin argued that the remand revived the right or peremptory removal under the rule but the Court isn’t having any of that. That being the case, the plain language of the rule makes the removal ineffective.

Post Conviction: No one raises the limitations question

Brocks v. State of Minnesota, 753 N.W.2d 672, (Minn., July 31, 2008), en banc.

Mr. Brocks gets an Opinion from the Supreme Court on the denial of his post conviction petition. He gets the opinion because the state failed to raise the two year statute of limitations in either the trial court of the appellate court. The oversight does not assist Mr. Brocks, though.

Eleven years ago this month, Mr. Brocks shot James Nunn seven times. Mr. Brocks did not deny the shooting; rather, he claimed he did so in self defense. The jury convicted him of first degree murder. On appeal, he argued that the trial court should have given a manslaughter instruction; and, (in a pro se supplemental brief), that he received ineffective assistance of trial counsel. The ineffective assistance claim alleged that trial counsel had a conflict of interest because he had worked with and been a friend of the victim’s father; and that counsel undermined the defense by advising him to discuss his drug involvement and to claim self-defense. Both aspects of the ineffectiveness claim were rejected on direct appeal.

Brocks argued in his post conviction proceeding that these claims fell within the two Knaffla exceptions, but the Court quickly points out that these exceptions only apply to claims that had not been raised on direct appeal. Consequently, Brocks’ ineffective assistance, post conviction claim is barred by Knaffla.

Brocks claimed that he had accepted the prosecutor’s plea offer on the Friday before trial was to start on Monday, but because his attorney waited until Monday morning to communicate the acceptance the prosecutor had withdrawn the offer. Unfortunately, Brocks is raising this claim for the first time on appeal of denial of post conviction relief so the court won’t entertain it.

"Cold Case" Comes to Minnesota

State v. Bartylla, Minn.S.Ct.

This is a DNA “cold hit” case. As a result of a burglary conviction, Mr. Bartylla’s DNA went into the BCA database. While working a homicide, a DNA type at the BCA ran the DNA results through that database, which hit upon Mr. Bartylla. Police or someone then obtained a second DNA sample from Mr. Bartylla and compared that all round with hits all round.

Following his conviction, Bartylla challenged the statute, 609.117, which requires collection of a DNA sample from convicted felony offenders, arguing that it was unconstitutional under the Fourth Amendment. The Court rejects that argument. The Court adopts a “totality of the circumstances” test and concludes that the state’s interest in obtaining the DNA profile outweighs the offender’s personal security interests. The state’s interests include exonerating the innocent, deterring recidivism, identifying offenders of both past and future crimes and bringing closure to victims of unsolved crimes. By comparison, the cheek swab just doesn’t measure up. ( In a footnote, the Court does say that if resort to a needle were necessary to extract the DNA that might be a different story.) The Court then adopts the same reasoning and results under the state’s constitutional provision.

Bartylla also ventured off into statistics land, arguing that the “product rule” is not properly to be utilized in “cold hit” cases. The Court says that it’s okay.

The 4-Hour "No Tow" Zone

State v. Gauster, Minn.S.Ct.  Mr. Gauster pulled onto the shoulder of a rural road to wait for his buddies to catch up with him. As luck would have it, a deputy sheriff rolled up behind him, stopped to inquire if Mr. Gauster required assistance. Of course, Mr. Gauster’s assistance need was for the deputy to disappear as Mr. Gauster had all manner of contraband in his car, including a bag of meth in the trunk. The state brought criminal charges based on the bag of meth. Mr. Gauster moved to suppress, arguing that there had been no authority to impound the car in the first place and thus the inventory search was unlawful. Mr. Gauster won this motion in the trial court, lost in the court of appeals and now wins in the supreme court.

The deputy chatted up Mr. Gauster, made him put the beer in the trunk and started to leave. Something, there’s always something, made the deputy run the plate; the owner had a suspended license. Mr. Gauster had told the deputy that he owned the car. The deputy chatted some more with Mr. Gauster and decided to give him two citations: suspended license and no proof of insurance. The deputy also decided to tow the vehicle. Before conducting an inventory search of the vehicle – that’s when the meth turned up – Mr. Gauster asked if he could either have someone pick up the car, or arrange his own tow. The deputy said, no. He issued Mr. Gauster the citations and towed the car.

The deputy lacked authority, however, to impound the car. By themselves, issuing only citations for either the suspended license or the failure to have proof of insurance authorizes impoundment. See State v. Askerooth, 681 N.W.2d 353 (Minn. 2004). The district court had found that leaving the car on the side of the road would not have created a safety hazard, so, again, there was no authority to impound it. While it is a violation of traffic laws to leave a car on the side of the road, the statute gives the driver four hours to get it moved. Minn. Stat. §§ 168B.04, subd. 2(b)(1)(i), 169.041, subd. 3 (2006). During this four hour period, there is no authority to impound the vehicle.

Finally, the deputy could have impounded the car based on the police role of protecting Mr. Gauster’s property, but not in this case. Mr. Gauster was not under arrest – see M.R.Crim.Pro. 6.01, S. 1(1)(a) – and, he stepped up by asking if he could either arrange for someone to fetch the car or to have it towed. Because Mr. Gauster was available to and capable of making his own arrangements for the car, there was no “care taking” purpose that would justify the impoundment (although that 4-hour clock is ticking).

The Court relied on two of its cases to reach this result: State v. Goodrich, 256 N.W.2d 506, 510 (Minn. 1977); and State v. Robb, 605 N.W.2d 96, 104 (Minn. 2000).

One final note. The state failed to assert during the suppression hearing that the deputy had probable cause to search the car (including the trunk) under the automobile exception to the warrant requirement because the deputy had found an open container and a pipe with suspected contraband in the passenger compartment. It could not, therefore, raise this argument for the first time on appeal.

Spreigl Victory for the Defense

State v. Smith: The state charged Vincent Smith with possession of a firearm by an ineligible. Police executed a search warrant at Smith’s sometime girlfriend; he did not live there – he was also not there at the time of the execution of the warrant - but police found clothing for an adult male, a prescription bottle in Smith’s name, correspondence to Smith but at a different address from girlfriend’s address, and a current Minnesota identification card in Smith’s name but also with a different address from girlfriend’s address. Police also found a .25 caliber handgun in between the box spring and mattress of a bed in girlfriend’s room. When girlfriend denied that the gun was hers she offered up the opinion that “it must be Vincent’s.”

At trial, the court permitted the prosecutor to introduce as Spreigl evidence Smith’s prior conviction of the same crime and a photograph taken before the present charge that showed Smith at girlfriend’s residence standing with another person near a table on which handguns were displayed. The jury found Smith guilty. The Court of Appeals reversed and remanded for a new trial.

The Opinion is Judge Shumaker at his scholarly best; indeed, you can already visualize the power point presentation coming soon to a CLE near you. Coincidently, the Opinion goes in the defendant’s favor.

The Opinion invites a more vigorous defense objection to either late or absent notice of Spreigl evidence, as required by the rule (requiring that the prosecutor give notice of the intent to offer such evidence and to disclose what the evidence will be offered to prove). Without explaining just why, Shumaker dismisses the defense objection to faulty/missing notice as inadequate.

The prosecution stated that the Spreigl evidence would be offered to prove the identity of Smith as the possessor of the gun found in the bed. This is a permissible purpose under the rule. State v. Ness, 707 N.W.2d 676 (Minn. 2006) requires that the trial court conduct an exacting analysis of the evidence that is being offered in support of that purpose in order both to ascertain “the purpose for which the evidence truly is offered,” Ness, and to determine if that supporting evidence is relevant under Rule 401. Here, Smith’s admission to possessing a gun when he was ineligible to do so, and the photographs showing that he was in the presence of guns at the same location and at a time not remote from the date of the search satisfies the relevancy test of Rule 401.

Even though this evidence is relevant, Spreigl evidence must also be sufficiently probative, which is not the same thing. The probative value of the prior firearms conviction depends on the similarity of the two acts. The more similar are the circumstances of each act, the more compelling is the inference that the same person was involved in each. In this instance, there is no similarity beyond the name of the crime and the possession of a handgun. (The Opinion lays out why this is so.) Consequently, the jury would “and likely did” use the prior conviction improperly for character purposes, a purpose prohibited by Rule 404. That is to say, the potential prejudice to the defendant outweighs the probative value.

Shumaker quotes a definition of “unfair prejudice” from a U.S. Supreme Court case. “The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the fact finder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, 180, 117 S. Ct. 644, 650 (1997).

The photographs suffer the same fate because they irreversibly blur the distinction between being in the presence of guns and being in possession of them. It was not illegal for Smith to be in the presence of firearms so long as he did not “possess” them. The photographs, however, were so “bluntly compelling” that the jury was unlikely to make that presence/possession distinction; the result is again to use the photographs improperly for character purposes.

The Court is quick to say that “mere possibility” of improper jury use of the evidence is not the test; rather, it is “the substantial and demonstrable danger that it would in fact do so because of the nature of each Spreigl item.”

So, this is a great read; print off a copy of it and spend some time on it.

When the jury wants to watch video's back in the jury room.

State v. Everson: A jury convicted Everson of aiding and abetting the murder of his mother. Everson, as well as the two codefendants who testified against him, gave recorded statements to the police. In addition to their trial testimony, the statements of the two codefendants were played for the jury and then the recordings were admitted into evidence as exhibits without objection. The court also permitted the playing of Everson’s recorded statement and it admitted the recorded statement of Everson as an exhibit.

After deliberations commenced, the jury asked to hear the recordings of Everson and the two codefendants. Various ruminations ensued over how to do this after defense counsel objected, arguing that to permit replaying of the recordings would unduly prejudice defendant.

When a jury makes a request such as this, the court “should” consider three factors:

(i) whether the material will aid the jury in proper consideration of the case;

(ii) whether any party will be unduly prejudiced by submission of the material; and

(iii) whether the material may be subjected to improper use by the jury.

State v. Kraushaar, 470 N.W.2d 509, 515 (Minn. 1991); see also Minn. R. Crim. P. 26.03, subd. 19(2) 1 and 2 (setting forth appropriate procedures to address a jury’s request to review evidence and indicating that trial court has discretion to provide the jury with other relevant evidence). The defense objection was that replaying the recordings would cause undue prejudice. The court overruled the objection generally, but without engaging in any analysis of the three factors above listed. The appellate court thus had no findings by the trial court with respect to the three Kraushaar factors. Consequently, the appellate court assumed that it was error to have played the recordings; so, at a minimum, the case does not stand for the proposition that the procedure utilized here was not error. Having glossed over any error analysis, the appellate court simply moved onto an analysis of whether the error was harmless. That analysis doesn’t stake out any new territory.

In Kraushaar the Court had held that the error was harmless, in part, because replaying the tape merely “allowed the jury to rehear what it had already heard,” the videotape was consistent with and corroborated by other evidence in the trial, and it was extremely unlikely that replaying the tape prompted “the jury to convict where it otherwise would not have done so.” Here, Justice Gildea parroted that language in finding that any error was harmless. There were no dissents to this holding.

The additional objection raised on appeal was to the procedure by which the jury got to listen to the recordings again. On this part of the Opinion, there is a 4-3 split (but for different reasons). As mentioned, the court and the parties ruminated over how to do the redo. Here are the rules that the court and the parties eventually came up with:

- Playing of the recordings would take place only in the courtroom.

- If the jury asked to hear any of the three recordings it would be required to listen to it in its entirety. [The Opinion does not state that the jury asked to hear only portions of any of the statements so the propriety of such a request was not before the court.]

- The jury could only re-hear a statement once.

- Playing of the recordings would be part of deliberations, although it would take place in the courtroom. This rule meant: The judge would not be present; the court reporter would not be present; counsel (by agreement) would not be present; the defendant (by agreement, including a personal waiver) would not be present; and the public would not be present.

However, there would be an employee of the county attorney’s office present to operate the laptop on which the recordings would be played; and a court clerk would be present. On appeal, the argument was that this was no different, if not worse than, the judge sticking her head into the jury deliberations room to inquire about evening adjournment plans. State v. Mims, 306 Minn. 159, 235 N.W.2d 381 (1975); Brown v. State, 682 N.W.2d 162, (2004). The majority concluded that this procedure was not a “structural error” that required, without regard to harmless error analysis, a new trial. [Errors that are structural “require automatic reversal because such errors ‘call into question the very accuracy and reliability of the trial process.’ ” State v. Brown, 732 N.W.2d 625, 630 (Minn. 2007),[internal citation omitted].]

Three Justices dissented from this last part of the procedure. Justice Anderson agreed with the majority that this aspect of the procedure was not “structural” and thus requiring automatic reversal for a new trial, but he thought that a remand was required to develop a record of just what occurred while the county attorney employee played the recordings; he thought that the appellate court should not blithely assume that everything was okay. Justices Meyer and Page, on the other hand, concluded that the presence of a county attorney employee and/or a court clerk intruded upon the secrecy of the jury’s deliberations and was thus structural with the automatic reversal flowing from that conclusion. Justices Meyer and Page were also alarmed by the violation of the secrecy requirements of jury deliberations, and by the exclusion of the public. The courtroom should not be converted into a de facto deliberation room.

The Opinion gives no real acknowledgment to the rule, 26.03, S. 19(2), that covers this pretty well. A jury that requests to review evidence shall be conducted to the courtroom, whereupon the court may permit the review. It is now, apparently, at least not plain error to suspend this rule and go off road. Whether it is error to engage is this procedure awaits another day.

Trying to Withdraw a Plea Gets Unnecessarily Complicated

State v. Mudgett: This is a mean spirited little case from the Court of Appeals. The court goes out of its way to punish a defendant who moves for a departure; that punishment is to strip him or her of the ability to move to withdraw the plea under the more lenient pre-sentencing “fair and just” standard.

Mudgett was at risk of being tagged as a career offender, with a maximum sentence of * years on two counts of *. His able attorneys, Pat McGee and * negotiated a plea deal for him that significantly reduced his risk exposure.

After the plea but before sentencing Mudgett moved for a departure from the Guidelines. At the start of the sentencing “proceeding” here’s what counsel said: “Today [Mudgett] indicated to me that if the court is not inclined to depart in this matter either dispositionally or durationally, he would seek to withdraw his plea. I just ask to be heard on that in the event the court is not inclined to depart.” Now, for those of us who actually do trial work in Ramsey County is there any ambiguity about this? Just how many hundreds of times have you heard just this, or said it yourself? Is it not a good idea, or at least an appropriate courtesy, to give the judge a head’s up to your plan?

The appellate court refuses to give these words their ordinary meaning – if the court denies the departure motion then, before imposition of sentence, I want to be heard on a motion to withdraw the plea. Instead, the appellate court says that the actual request was to replace the departure motion with a motion to withdraw the plea.

This is an absurd result in the face of what the rule on sentencing provides. A motion for a departure would seem to be what is meant by a motion for a “sentencing hearing” under Rule 27.03, S. 1(D). Either party is entitled to request a sentencing hearing. This rule goes on to state that “The motion for a sentencing hearing shall specifically set forth the reasons for the motion,…” The rule specifically refers to challenges to the pre-sentence investigation report and the sentencing worksheet. Since the report, at least in Ramsey County, always opines about the wisdom of a departure, that portion of the report becomes a basis for challenge. How else to frame that challenge than by a request for a departure?

Anyway, subsection 1(E) goes on to provide that, not surprisingly, the court is to hear “issues raised in the sentencing hearing motion…” At the end of the hearing, the court may either announce its findings of fact, conclusions and appropriate order “on the issues submitted by the parties” or it must do the same thing by written findings, conclusions and order afterwards. Then, and here’s the kicker, the rule tells the trial courts this:

(G) The court may impose sentence immediately following the conclusion of the sentencing hearing.

It may, but is not required to do so. In fact, the court could, on its own or on request of a party, schedule the actual imposition of sentence for an entierely different day. Even when the court imposes sentence “immediately following the conclusion of the sentencing hearing” the rule does slow things down just a bit. That’s because the rule says that the judge has to give a bunch of people - the prosecutor, the victim, defense counsel, and the defendant - “an opportunity to make a statement with respect to any matter relevant to the question of sentence including a recommendation as to sentence.” Subd. 3. Only thereafter is the court actually authorized to pronounce a sentence.

The Court is now saying that the trial judge may conflate or rearrange, if not bulldoze its way through these steps. The court may hear argument on the departure motion but not rule on it; the court then hears from the enumerated parties and then imposes sentence. If the sentence is not a departure then the court has de facto denied the departure motion. It is especially alarming that the appellate court has given trial courts the green light to combine argument on the departure motion – an up or down vote so to speak – with argument on what sentence actually to impose. Here’s how the appellate court saw it:

[A]fter the parties have been heard regarding what sentence the court should impose, there is no rule requiring the district court to divulge its sentencing contemplations or inclination before it imposes the sentence. This is not to say that the rules prohibit a district court from disclosing its inclination regarding sentencing alternatives before imposing the sentence to allow a defendant to consider his options, including perhaps whether to make a pre-sentencing motion to withdraw his guilty plea. But the rules do not require this disclosure.

The question whether to depart and the question what sentence to impose are not the same questions. Rule 27’s chronology delineates those questions, a delineation the appellate would permit to be ignored. Indeed, the appellate court insists that the two questions, if not a single question in application, must be considered in tandem:

If Mudgett had requested the district court to decide the sentencing motion first, … and then, assuming the court denied that motion by imposing the presumptive sentence, to entertain an alternative motion to withdraw his guilty plea, … the district court could treat the issues in their reasonable order: Once it imposed Mudgett’s sentence, the court could then hear argument on his post-sentencing motion to withdraw his guilty plea. [Underlining added; Italics in original.]

The reason for all this fudging and ignoring of the rules is simple enough; conflating the two questions thereby permits the trial court to deprive the defendant of the opportunity to move to withdraw the plea under the more lenient standard applicable when the motion is made before sentence is imposed.

Okay, so it seems prudent now always to state at the beginning of a departure motion that this is a motion for a sentencing hearing under Rule 27; and that you are requesting that this be heard and ruled upon separately from imposition of sentence. Indeed, it would seem most prudent specifically to request that the court schedule a “sentencing hearing” exclusively to argue and receive a ruling on the departure motion, and that the proceeding at which the court imposes sentence occur on an entirely separate day. The defendant can then mull over the decision whether to move to withdraw the plea or accept the Guidelines sentence.

Sentencing Juries

Kelvin Jackson: A jury convicted Jackson of aggravated first degree robbery. Jackson and a woman forced their way into the victim’s house, robbed and assaulted the victim. The assault resulted in a fracture of the left orbital floor and lacerations to the scalp. On the way to the hospital, the victim suffered a heart attack.

The original charge had been aggravated first degree robbery (dangerous weapon). Before trial, the state added another aggravated first degree robbery ((inflicts bodily harm), a count of second degree burglary, and an assault count for the heart attack. The court granted a judgment of acquittal on the assault charge and the jury convicted on all remaining counts.

During the penalty phase, the jury was asked, and answered yes, to three questions: Did the aggravated robbery occur in the victim’s home? Did the victim sustain multiple blows to the head? Did the victim sustain an orbital fracture? At sentencing, the court imposed an executed sentence of 120 months on first degree aggravated robbery (dangerous weapon). The court based the departure on the seriousness of the victim’s injuries, and on the invasion of the victim’s zone of privacy.

Justice Page garners a majority to reverse the enhancement. Regarding the nature of the victim’s injuries, the orbital fracture is “substantial bodily harm,” which is third degree assault. Because third degree assault was not charged this is an improper basis for departure. (Even had three degree assault been charged, a departure would have been improper on the basis of the cumulative punishment for conduct that constitutes more than one offense.

Regarding zone of privacy, that’s a burglary, also not charged. Although Jackson could have been sentenced on both the robbery and the burglary had he been charged and convicted, the aggravated sentence imposed, 120 months, exceeds the maximum guidelines sentence that could be imposed for the two offenses. This is thus an impermissible basis for departure.

Justice Gildea, joined by Justice Barry Anderson and Justice Dietzen, writes a vigorous dissent.

Getting Started

I have two goals, at least for now.

First, I plan to write about published and unpublished Minnesota appellate court opinions. This endeavor is not intended to be an exhaustive review of every opinion; there's no enough time for that. Instead, I will look at opinions that strike my fancy in some way. There will be an effort to include any published opinion that reviews post conviction proceedings in the district court. These opinions can have a direct bearing on the work of the Innocence Project of Minnesota, and the Innocence Clinics that the Project operates. I happen to teach one of those clinics, the initial clinic that has been operating at Hamline University School of Law since 2002.

Second, I want to bring in my Innocence Clinic students both to assist in the review and analysis of these post conviction opinions. This will, I hope, give them the opportunity to connect wrongful convictions to post conviction remedies. After all, in the absence of an agreement with the prosecutor that an inmate has been wrongfully convicted, the vehicle to present that claim in court with be the post conviction petition.

So, let's get started.