Recent Minnesota Supreme Court Grants of Petitions For Further Review.

State v. Morales, Minn.Ct.App., 4/28/09, review granted, 7/23/2009.  I wrote about this opinion here.  This is the whore house robbery/murder with a mess of interlocking statements.  The Court of Appeals thought that the evidence rulings had been sufficiently botched to require a new trial.  The Supreme Court has granted the State’s petition for further review.

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Finnegan v. State, Minn.Ct.App., 5/5/2009, review granted, 7/23/2009.  This is the case where the Court of Appeals said that attempting suicide is a voluntary absence from attendance at trial such that the trial may continue anyway.  I wrote about this opinion here.  The Supreme Court has granted Mr. Finnegan’s petition for further review.

Link to Source Code Consent Judgment and Permanent Injunction

Here’s a link to the consent judgment.

DUI Enhancement Based On License Revocation Survives Various Constitutional Challenges.

State v. Omwega, Minn.Ct.App., 7/21/2009.  In August, September and October, 2006, police arrested Mr. Omwega for driving while impaired.  Following each arrest, the driver’s license people revoked his license; Mr. Omwega did not challenge any of these revocations.  Alas, in March, 2007, police again arrested Mr. Omwega for driving while impaired, and this time the prosecutor charged him with felony first degree driving while impaired.  Mr. Omwega made numerous constitutional challenges to the use of license revocations to enhance the offense to a felony, all of which the appellate court rejects.

First, the Fifth Amendment’s due process clause does not prohibit this enhancement.  This is settled law, at least in Minnesota.  State v. Coleman, 661 N.W.2d 296 (Minn.Ct.App. 2003); State v. Goharbawang, 705 N.W.2d 198 (Minn.Ct.App. 2005).

Second, Mr. Omwega made an Apprendi argument that enhancement is forbidden unless a jury finds not only the existence of a revocation but also all of the underlying facts associated with the revocation.  The appellate court makes the conclusory pronouncement that  Apprendi requires only proof of the existence of the revocation itself.  The court also does not want to convert the revocation process into a criminal process – a jury and all that - a concern that the court used in rejecting a similar argument that the implied-consent hearing is a de facto criminal proceeding.  See Davis v. Comm’r of Pub. Safety, 517 N.W.2d 901 (Minn. 1994).

Lastly, Mr. Omwega challenged the September revocation as unconstitutionally obtained.  He complained that the state had not provided timely notice of the revocation; that his waiver of judicial review was neither considered nor knowing; and that because he was not the driver fundamental fairness prohibited revocation.  Notice, both the trial and appellate court concluded, was sufficient when the officer stuffed the notice papers into Mr. Omwega’s bag as he was headed out the door of the police station upon his release.  Waiver, the appellate court concluded, may properly consist of simply not exercising the review mechanism.  Third, while it’s true that at the time of the officer’s stop Mr. Omwega was not driving, the driver told the officer that Mr. Omwega had been driving.  This is sufficient.

Court Upholds Second Search Warrant of Defendant’s Residence.

State v. Fort, Minn.S.Ct., 7/16/2009.  On December 15, 1990, someone broke into the home of eleven year old Marcus Potts, and stabbed him forty-four times, causing his death.  A police tracking dog picked up a scent from footprints in the snow that lead away from the house to an address three or four houses down the street where, it turned out, Mr. Fort lived.  Police executed a search warrant at Mr. Fort’s house; they found a pair of shoes that had a “consistent” foot pattern and some clothes.  DNA analysis of blood on a pair of pants did not match either Potts or Fort.  

Ten days later, police obtained a second search warrant for Mr. Fort’s house; they did so because they had acquired “equipment from the Minnesota Bureau of Criminal Apprehension … that could detect blood that was not visible to the naked eye.”  This machine found eight small drops of blood.  These drops were too small to be tested in 1990, but not too small in 2001.  The 2001 testing produced a DNA profile that matched that of Potts.

While awaiting trial, four jail inmates came forward with claims that Fort had confessed to killing Potts.  While the jury deliberated, another jail inmate called Fort’s attorney to report that Fort’s cousin, Paul Rice, was whiling away the time by confessing “to the ‘whole wing’ of the jail that he had killed Potts.  The trial court held an evidentiary hearing on this new claim but declined to grant Fort a new trial on the basis of it.

Mr. Fort challenged the second search warrant, arguing that there was no new probable cause to support it.  The appellate court rejects this double dipping argument – State v. Zanter, 535 N.W.2d 624 (Minn. 1995).  Both applications had sought bloody items; indeed the first search produced blood on a pair of pants.  All that the second application added was the desire to look for bloody items again only with this magic BCA machine.  The appellate court concludes that this desire to look for the same thing, only using a different technique, provided the “new information” on which the second magistrate could find new probable cause to believe that “new evidence” would be found.

Mr. Fort also challenged the state’s proof of premeditation to support the first degree murder conviction.  The appellate court basically counts to forty-four and rejects this argument. 

The appellate court then considered the new evidence, Mr. Rice’s purported confession to his jail buddies, and whether Mr. Fort should get a new trial because of it.  To get a new trial on the basis of new evidence here’s what a defendant has to establish:

In order to obtain a new trial based on new evidence, the defendant must show that: (1) the evidence was not known to him or his counsel at the time of trial; (2) the failure to learn of the new evidence was not because of lack of diligence; (3) the evidence is material and is not impeaching, cumulative, or doubtful; and (4) the evidence is likely to produce an acquittal or more favorable result for the defendant. State v. Pippitt, 737 N.W.2d 221, 226 (Minn. 2007).

The state conceded that Mr. Fort met the first two parts of this standard.  The appellate court thus devotes two paragraphs to a look at the remaining two parts of the test.  They decided to defer to the findings of the trial court that the evidence of Mr. Rice’s confession was “too doubtful to support” a new trial, and that this evidence “lacked credibility.”  There are snitches and there are snitches.

Lastly, the state conceded that Mr. Fort could not be sentenced on both first degree premeditated murder and first degree felony murder.

Co-owners Do Battle Over Burglary Statute’s Meaning of “Lawful Possession.”

State v. Spence, Minn.S.Ct., 7/17/2009.  Mr. Spence and his girlfriend, A. S., owned a house together.  When the couple – who were never married – split up they agreed to pay the mortgage equally although A.S. and the children continued to live in the house.  A.S. did not change the locks.  A jury convicted Mr. Spence of first degree burglary for entering the residence and assaulting A.S.  (At the time of the burglary, there was no order for protection in force.)  During jury deliberations, the jury sent out this note, to which the court responded:

Note:  “Does a ‘house title’ owner have the right to enter a dwelling occupied by someone else ([example] renter) at any time without permission? Lawful Possession.”

Response:  “Yes, unless the joint owner has been divested of the right to lawful possession of the property by an Order for Protection, or by an agreement made with the joint owner.”

On appeal, Mr. Spence argued successfully to the Court of Appeals that because he was a co-owner of the residence he could not commit a burglary unless a court order had divested him of lawful possession.  The Minnesota Supreme Court reverses, but with two dissenting votes.

To constitute burglary, the entry must be “without the consent of the person in lawful possession.”  The state wanted “lawful possession” to mean actual physical control of the building; Mr. Spence wanted the phrase to mean legal ownership, which could be divested only by a court order or a written agreement with other owners.  The appellate court rejects the state’s proposal because it would encompass a trespasser who maintains possession simply by being there.  (Squatters, not being in “lawful possession” apparently can’t be the victim of a burglary.)  The court didn’t like Mr. Spence’s proposal any better; it ignored the ordinary meaning of “possession,” which is to exercise control over the object.  So, what to do?

Uphold the trial court, in large part because Mr. Spence did not object to the court’s response to the jury’s note.  The trial court’s response, which allowed for implied agreements for divestment of lawful possession, was not “plain error.”  The court does leave the door slightly ajar on the question of an implied agreement because it does not address the question whether an agreement made with the joint owner must be in writing to be enforceable under the statute of frauds.  See Minn.Stat. 513.01 (1); Mr. Spence did not raise this issue in the trial court or the in the court of appeals.  As a result, that question awaits another day.

Justice Page, dissenting, did not think that the record supported an agreement by Mr. Spence to divest himself of the right to enter the residence.  All that the record established was that one co-owner – Mr. Spence – allowed the other co-owner – A.S. – to be the sole occupant.  This fact, and nothing more, does not establish an implied agreement that Mr. Spence divested himself of the right of entry.

An Incomplete Memory Permits Introduction of Recorded Recollection Under Rule 8.03(5)

State v. Stone, Minn.Ct.App., 7/7/2009.  Mr. Stone, unmasked, and his masked companion crashed a house that they believed had lots of cash in it; there was some cash but a lot more people, one of whom Mr. Stone shot.  Two of the occupants told the police that Mr. Stone was one of the assailants; another of the occupants, G.J.,  identified Mr. Stone from a photo array.  At trial, which occurred nine months later, G.J. had difficulty recalling that he had made an identification, whether he’d got a good look at the unmasked man, and what description of the intruder he had given to the police.  He did agree that his witness statement was an accurate reproduction of the questions and answers from the police interview that occurred shortly after the break in.  His typical response at trial to the question whether he believed that he had sufficient recollection to testify fully and accurately about what happened was “That’s all I remember right now.”  Over objection, the trial court allowed the state to play the entire recording of G.J.’s police interview.

The trial court admitted the recording as a recorded recollection under Rule 8.03(5):

[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness‟ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

The appellate court gives the rule an expansive reading.  A witness’s incomplete memory is enough.  The rule is satisfied, and the previous statement or recording comes into evidence, when the witness’s recollection at trial is impaired to an extent that he is unable to testify fully.  A recorded recollection may then “supplement” (replace?)  that incomplete memory.

Mr. Stone also complained that G.J. had neither made nor adopted the recording, a requirement of the rule.  The appellate court concludes that a recording in the witness’s own voice, made at a time when the events described would be fresh, satisfies the rule.

Supreme Court Grants Review on Question of Computing "Within Ten Years" of prior DUI Convictions

State v. Wertheimer, Minn.Ct.App., 4/7/ 2009, review granted, 6/*/2009.  The state charged Mr. Wertheimer with first degree driving while impaired, for an arrest on May 12, 2007.  He had thrice been convicted of DWI, one of which occurred on May 12, 1997.  (See where this is going?)

Mr. Wertheimer argued that the May 12, 1997 DWI conviction was not "within ten years of three prior qualified driving related offenses."  The trial court and the court of appeals disagreed, relying upon a statute by which to compute time, Minn. Stat. 645.15.  This statute says:

Where the performance or doing of any act, duty, matter, payment, or thing is ordered or directed, and the period of time or duration for the performance or doing thereof is prescribed and fixed by law, the time, except as otherwise provided in sections 645.13 and 645.14, shall be computed so as to exclude the first and include the last day of the prescribed or fixed period or duration of time. When the last day of the period falls on Saturday, Sunday, or a legal holiday, that day shall be omitted from the computation.

So, you don't count May 12, 1997 so the ten year term commences the next day, May 13, 1997.  You do count the last day, which would be May 12, 2007.  The 1997 conviction is in.  The Supreme Court has granted review.

EJJ Adjudication For Offense Involving Firearm Prevents Departure From Sixty Month Mandatory Minimum Sentence on Gun Possession by Ineligible.

State v. Jiles, Minn.Ct.App., 6/23/2009.  Mr. Jiles has an EJJ adjudication of second degree assault involving a firearm, and a adult felony motor vehicle theft conviction.  The EJJ adjudication and car theft make him ineligible to possess firearms.  He did so anyway and pleaded guilty to it.  The offense carries a mandatory minimum sentence of sixty months imprisonment.

The trial court found "substantial and compelling reasons" to sentence Mr. Jiles to a sentence of only thirty-four months.  The state appealed that departure.  The state argued that because Mr. Jiles' assault EJJ adjudication involved a firearm the court could not ignore the mandatory minimum sentence because of the terms of Minn.Stat. 609.11, subd. 8(b).  This statute says that the court may not:

sentence a defendant without regard to the mandatory minimum sentences established by this section if the defendant previously has been convicted of an [assault] in which the defendant used or possessed a firearm or other dangerous weapon.

Mr. Jiles suggested that the use of "convicted" did not include an EJJ adjudication and so subd. 8(b) didn't apply to him.  The appellate court disagreed, citing Minn.Stat. 260B.245, subd 1, which equates an EJJ adjudication to an adult felony criminal conviction for purposes of the sentencing guidelines.  The appellate court also thought that because Minn.Stat. 624.713 refers to an EJJ adjudication as a "conviction" that an EJJ adjudication is a conviction.

Minnesota Supreme Court Grants Review in Two Cases

State v. Fleck, Minn.Ct.App., 3/24/2009.  I wrote about this case here.  Police found Mr. Fleck asleep behind the wheel of his car, which was lawfully parked in the apartment complex parking low where he lived; the keys were in the console between the front bucket seats.  The Court of Appeals had agreed with the trial court that Mr. Fleck was in control of the car for DUI purposes.  The Minnesota Supreme Court has granted review of the Opinion from the Court of Appeals.

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State v. Hakala, Minn.Ct.App., 3/31/2009.  I wrote about this case here.  The trial court had excluded a defense expert to challenge the validity of the techniques and protocols used by the social worker in interviewing alleged victims of sexual assault.  The Court of Appeals had held that this exclusion was an abuse of discretion.  the Minnesota Supreme Court has granted review.

Upward Departure in Criminal Sexual Conduct Conviction is Upheld

State v. Grampre, Minn.Ct.App., 6/9/2009.  Mr. Grampre broke into his neighbor's home while she slept, then sexually assaulted her as he held a knife to her throat.  The victim's young daughter was in the next room.  Mr. Grampre pleaded guilty to two counts of criminal sexual conduct, first degree burglary, and second degree assault.  The trial court imposed an upward departure on the basis of three aggravating factors:  particular cruelty, particular vulnerability, and prior planning.

The trial court supported its finding of particular cruelty because Mr. Grampre woke the victim, held a knife to her throat during the sexual assault, then forced her to take a shower after the rape.  His argument to the appellate court was that because the use of the knife was the factual basis for the second degree assault conviction, it could not be a basis for departure under the recent Opinion, State v. Jones, 745 N.W.2d 845 (Minn. 2008).

Jones identified four improper grounds for departure, one of which is that conduct underlying one conviction cannot be relied on to support departure on a sentence for a separate conviction.  The appellate court said that Mr. Grampre would be correct but for a statutory exception, which Jones recognized:

Notwithstanding subdivision 1, a prosecution or conviction for committing a violation of sections 609.342 to 609.345 with force or violence is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct. If an offender is punished for more than one crime as authorized by this subdivision and the court imposes consecutive sentences for the crimes, the consecutive sentences are not a departure from the Sentencing Guidelines.

Minn.Stat. 609.035, Subd. 6 [emphasis in original].  The use of the knife constitutes "force" and thus triggers this statutory exception.  It was thus permissible for the trial court to rely upon the use of the knife in finding particular cruelty.

The appellate court then goes on to uphold the departure.  In doing so, it totally ignores last month's Minnesota Supreme Court Opinion, State v. Vance, available here.  In Vance, as here, children were present in the residence but neither saw nor heard the sexual assault that occurred in a different room.  Vance held that this was not a sufficient basis for a departure.

The state conceded that Mr. Grampre could not be convicted and sentenced on both criminal sexual conduct counts that arose from the same facts.  The appellate court vacated one of those convictions and sentences.

Defense Expert on Alcohol Blackouts Cannot Testify Whether a Defendant Who Is In One Can Formulate Specific Intent

State v. Ptacek, Minn.Ct.App., 6/9/2009.  A jury convicted Mr. Ptacek of first degree criminal sexual conduct against his fifteen year old nephew.  Mr. Ptacek raised an intoxication defense; he offered testimony from an alcohol abuse counselor to testify about alcohol blackouts in general, the effects of a blackout, and whether Mr. Ptacek was in one at the time of the offense.  Essentially, the expert would state that Mr. Ptacek's blackout state prevented him from formulating the specific intent required for commission of this offense.  The trial court would only permit this expert to testify about what blackouts are and about the factors that cause them.

The trial court relied on rather well settled law in Minnesota, State v. Griese, 565 N.W.2d 419, 425 (Minn. 1997), best stated in State v. Provost, 490 N.W.2d 93 (Minn. 1992):

[J]urors must look to „what a defendant says and does‟ to determine whether a defendant acted with the requisite intent.

Here's what the trial court said about what the expert could not say to the jury:

I don't want you to give an opinion whether there was an en bloc blackout or a fragmentary blackout in this case. I don't want you to give an opinion that people do things in blackouts that they normally wouldn't do under normal circumstances. I don't want you to give any opinion that people seek treatment after these events. I don't want you to talk about OCB, your coined phrase of out-of-character behavior. And I don't want you to try to estimate or guesstimate a blood alcohol concentration of [appellant] or what the blood alcohol concentration needs to be in order to get it a blackout state.

Mr. Ptacek also griped about the JIGS definition of fellatio; if you want to know about that, follow the link to the opinion.

Erroneous Source Code Ruling But No New Trial

State v. Crane, Minn.Ct.App., 6/2/2009.  This litigation began even before Underdahl I, 735 N.W.2d 706 (Minn. 2007).  Thereafter, the trial court ruled that the state didn't have the source code and so denied the defense request for it.  As we all know now, Underdahl II, 2009 WL 1150093 (Minn. 4/30/2009), that's wrong.  What, therefore, is the remedy for Mr. Crane?  Nothing, as it turns out.

The state charged Mr. Crane both with being under the influence and with having a blood alcohol level over the limit.  The appellate court concluded that the trial court's denial of the motion for the source code was prejudicial on the blood alcohol level count, but it was not prejudicial on the under the influence count. 

There's a dissent that is actually more interesting that the majority opinion.  The dissent would uphold the trial court because Underdahl II's assertion that the state has the code is a legal fiction, and because Mr. Crane didn't cite the correct - if there is one - subsection of Rule 9.  Mr. Crane's motion cited subdivision 2(1), which the dissent thought was fatal, as explained in footnote 2:

Such relief may be obtained pursuant to subdivision 2(3), which authorizes a district court to “require the prosecuting attorney to disclose to defense counsel . . . relevant material and information” that is actually possessed by the prosecuting attorney. See Minn. R. Crim. P. 9.01, subd. 2(3). Subdivision 2(1), however, by its express terms, applies only to matters that are not in the possession or control of the prosecuting attorney but are “within the possession or control of an official or employee of any governmental agency.” Minn. R. Crim. P. 9.01, subd. 2(1). Crane did not move for, and could not have obtained, relief under subdivision 2(3) because it is undisputed that the prosecuting attorney in this case, the city attorney for the city of Mankato, does not have possession or control of the source code.

Second Amendment Not Enforceable Against the States and so Firearm Possession by Ineligible Statute is not Unconstitutional.

State v. Turnbull, Minn.Ct.App., 6/2/2009.  Minnesota joins the legal battle that is shaping up after last term's District of Columbia v. Heller, 128 S.Ct. 2783 (2008), which held that the Second Amendment conferred an individual right to keep and bear arms.  The Court of Appeals joins the side that has declined to extend Heller to the states.

The Ninth Circuit has reached the opposite conclusion, Nordyke v. King, (07-15763), but this case is procedurally further behind than a couple of other cases.  The Eleventh Circuit agrees with Minnesota, United States v. Rozier, (11th Cir. 3/4/10), available here.

If you want to follow this litigation, a good place to start is here, and here. 

It is Unlawful to Carry a Pistol While Under the Influence of Alcohol in One's Own Place of Business.

State v. Gradishar, Minn.Ct.App., 6/2/2009.  Mr. Gradishar owns and manages a bar in Duluth.  One night at the bar - it must have been a slow night - Mr. Gradishar just happened to mention to one of his (apparently disgruntled) employees, an off duty cop, that he had his gun in his pocket, for which he had a permit.  The cop asked Mr. Gradishar if he'd been drinking; when Mr. Gradishar admitted that he had, the cop arrested him for carrying a pistol in a "public place" while under the influence of alcohol.

Such behavior happens to violate Minn.Stat. 624.7142, which says:

A person may not carry a pistol on or about the person’s clothes or person in a public place . . . when the person is under the influence of alcohol.

The appellate court decides that a "public place" for purposes of this statute is:

generally an indoor or outdoor area, whether privately or publicly owned, to which the public have access by right or by invitation, expressed or implied, whether by payment of money or not.

This definition ignores a perfectly good definition found elsewhere in Chapter 624 (emphasis added):

"Public place" means property owned, leased, or controlled by a governmental unit and private property that is regularly and frequently open to or made available for use by the public in sufficient numbers to give clear notice of the property's current dedication to public use but does not include: a person's dwelling house or premises, the place of business owned or managed by the person, or land possessed by the person; a gun show, gun shop, or hunting or target shooting facility; or the woods, fields, or waters of this state where the person is present lawfully for the purpose of hunting or target shooting or other lawful activity involving firearms.

Now, this statutory definition is in a section that prohibits the carrying of BB guns, rifles, or shotguns, Minn.Stat. 624.7181.  This section, curiously, does not prohibit Mr. Gradishar from carrying a shotgun about the bar while under the influence.

Inmate's Letter Writing Campaign, in Violation of an Order For Protection, Sufficiently Establishes Pattern of Harassing Conduct.

State v. Franks, Minn.S.Ct., 5/14/2009.  The district court found Mr. Franks guilty of four counts of violation of an order for protection, and one count of pattern of harassing conduct.  The primary issue on appeal was whether the facts supported the later conviction; if so, then there's a sentencing issue as well.  To understand the former, there's nothing for it but a rather lengthy recitation of the "history of the relationship" of Mr. Franks and one "J.R."

Mr. Franks and J.R. met up in 1996, got married in 2002, and got divorced in 2004; along the way they had two children, A.F., and B.F.   In between the separation and the divorce, J.R. obtained an order for protection, which said that Mr. Franks:

"shall have no contact, either direct or indirect, with [J.R.] or the children, whether in person, with or through other persons, by telephone, letter, or in any other way” except by court-supervised visitation. Franks was present at the order for protection hearing.

Two days after the district court issued this order, Mr. Franks crow-barred his way into J.R.'s home, whereupon he committed various acts of mayhem upon her, for which he went to prison for seventy-eight months.  Then the letters started. 

But first, let's see what Mr. Franks must have done in order to be guilty of pattern of harassing conduct.  First, he must have committed two or more designated predicate offenses, including violation of an order for protection.  Next, he must have known or had reason to know that this conduct would cause a particular victim under the circumstances to "feel terrorized" or to fear bodily harm.  Lastly, he must have actually caused the victim to "feel terrorized" or to fear bodily harm.  Minn.Stat. 609.749, subd. 5(a).

The appellate court construes "to feel terror" to mean the same thing that "terrorize" means under the terroristic threats statute:

to cause extreme fear by use of violence or threats.

State v. Schweppe, 306 Minn. 395, 400, 237 N.W.2d 609, 614 (1975).  This is one of only two points that go to Mr. Franks.  Now, back to the letters.

Mr. Franks wrote to his young children (which J.R. had to read to them) ("It's all your Mom's fault that you can't come see me."); to J.R. ("Don't you think you've been playing a game with me plenty long?"); to one of J.R.'s friends(Describing his sexual prowess with J.R.'s friends while they were married with the invitation to be sure to let J.R. know about it; describing all the iron he's been pumping in the joint.); and to J.R.'s parents (It's your daughter's fault that I can't see my kids.). 

The generous view of all this correspondence was a plea to be able to see his children while in prison and when he got out.  The jaundiced view - and that of the appellate court - would be this:

  a reasonable trier of fact could have found that Franks had reason to know that the statements in his letters would send several messages to J.R., including that if she did not agree to prison visitation with his sons, Franks would punish J.R. financially; that he would cause her sons to despise her; that even in prison he still had the power to reach out and emotionally hurt and embarrass her with her friends; that he would soon be released from prison and that he would be even bigger and stronger than before; that her efforts to protect her sons were futile because once he was released from prison there was no way J.R. would be able to prevent contact; and that in the end he would obtain custody of their children. These threatened future acts, as well as the underlying acts of repeatedly sending letters in violation of the existing order for protection, are of a nature and tenor to support a finding that Franks had reason to know that his letters would cause J.R., who had been the victim of Franks’ past acts of terror, to fear bodily harm or to feel extreme fear.

Under this view, the evidence is more than sufficient.

Now for the sentencing issue.  The trial court sentenced (consecutively) on the four counts of violation of a no contact order.  The appellate court assumed, without deciding, that the trial court could sentence on either these four counts or the pattern count but not both.  However, under the Guidelines, the pattern count is the more serious offense so that's the one that should have been sentenced.  The appellate court remands the case with instructions to impose sentence on the pattern of harassing conduct conviction.

A Child's Mere Presence At the Scene of an Assault Does Not Support A Departure

State v. Vance, Minn.S.Ct., 5/21/2009.  A jury convicted Mr. Vance of several criminal sexual conduct offenses, and a second degree assault offense. Although there were children in the apartment during the assaults, the children were never in the room in which the assaults were occurring.  At the Blakely sentencing trial, the state submitted an aggravating factor, that the assaults occurred in the presence of children.  Over objection, the trial court instructed the jury that

The State need not prove that the child or children actually observed or heard the offense or offenses, so long as they could have, from where they were located. Furthermore, a child in an adjoining room could be considered to be within sight or sound of the offense if the defendant knew the child was there, and the victim was less inclined to flee because she did not want to abandon the child.

The presence of children is an aggravating factor when the offense is committed in the actual presence of children.  State v. Profit, 323 N.W.2d 34 (Minn. 1982).  It can also be an aggravating factor when the victim is particularly vulnerable because of a child's presence.  State v. Johnson, 450 N.W. 2d 134 (Minn. 1990).  Mr. Vance, however, thought that in this instance, the instruction was a bit too loose because all that jury had to conclude was that it was possible that the children saw or heard the offenses.

The appellate court agrees that the instruction was a material misstate of the law.  Mere presence is not enough; the children must have actually seen or heard the offense.  However, because the jury found two other aggravating factors, either or both of which would support the double departure, the appellate court affirms the sentence.

Sentencing Contrary to Guidelines, to Which Defendant Agreed, Does Not Authorize Post Conviction Withdrawal of Plea.

Carey v. State, Minn.Ct.App., 5/19/2009.  Mr. Carey plead guilty to two counts of criminal sexual conduct.  The plea agreement called for the court first to sentence on the later occurring offense and then the earlier one.  This resulted in an executed sentence of 144 months and a consecutive, stayed sentence of 86 months.  Had the counts of conviction been sentenced in correct chronological order, the total executed sentence could have been 230 months had the trial court sentenced consecutively.  The trial court went over all of this at the sentencing hearing, all the while Mr. Carey saying that he wanted to be sentenced backwards.

Three years after all these machinations, Mr. Carey filed a post conviction petition, alleging that his sentence had been illegal because they were imposed backwards; he sought only to be allowed to withdraw his guilty pleas.  The district court denied the petition.

And the appellate court upholds that denial.  The appellate court focuses on the requirements of a valid guilty plea, not the apparent impermissibility of backwards sentencing.  See Guidelines, II.F.  The appellate court points to a 1997 amendment to the Guidelines enabling statute, 244.09, subd. 5, which says that sentencing under the Guidelines is not a personal right but a "procedure based on state public policy ..."  See also State v. Misquadace, 644 N.W. 2d 65 (Minn. 2002). 

With the Guidelines out of the way, the appellate court decides that the real question is whether Mr. Carey's pleas were voluntary, and concludes that they were.

Voluntary Statements Made During Administration & Post-Mortem of Polygraph Examination Are Admissible

State v. Dressel, Minn.Ct.App., 5/19/2009.  The State charged Mr. Dressel with various sexual and assault offenses against his three year old daughter.  Before the charges were filed, Mr. Dressel agreed to come into the police station in order to take a polygraph test.  Officers told him both before the polygraph and afterwards that he was not under arrest and was free to leave at any time.  Indeed, after the test, officers gave Dressel a ride home.

After taking the polygraph, officers told Mr. Dressel that he had failed it.  In the ensuing interview, Mr. Dressel made certain admissions.  Mr. Dressel moved to suppress the statements and admissions that he made during and following the polygraph examination.  (He also moved to suppress other statements made at a different time and location.)  The trial court excluded the statements, reasoning that they were "an extension of the polygraph examination" and not admissible.  The state appealed.

And won.  Existing case law excludes admission of three types of polygraph evidence:  the result of the exam, (State v. Kolander, 236 Minn. 209, 52 N.W.2d 458 (1952); a defendant's willingness or refusal to submit to the exam,  State v. Anderson, 261 Minn. 431, 113 N.W.2d 4 (1962); and a defendant's actual submission to the exam, State v. Perry, 274 Minn. 1, 142 N.W.2d 573 (1966).  On the other hand, statements obtained during the course of a polygraph examination - which apparently includes the post mortem when the cops tell a defendant how it came out - are admissible unless it's determined that such statements were involuntary.  In the context of polygraph examinations, there are two factors - which are not exclusive - that may cause such statements to be involuntary:

First, a statement provided in connection with a polygraph examination may be deemed involuntary if a law enforcement officer “misrepresent[ed] the reliability of the test.” Id.; see also State v. Davis, 381 N.W.2d 86, 88 (Minn. App. 1986) (affirming district court’s finding that written statement provided after polygraph was involuntary, in part because examiner “attempted to convince [defendant] that the polygraph test is foolproof”). Second, a statement provided in connection with a polygraph examination may be deemed involuntary if a law enforcement officer has “falsely impl[ied] that the results will be admissible in evidence.” [State v. ]Jungbauer, 348 N.W.2d [344 (Minn. 1984)] at 346.

Because the trial court didn't address the voluntariness of the statements, the appellate court sends the case back for that determination.

Court Continues to Prohibit Expert Psychiatric Evidence of Mental Illness During Guilt Phase

State v. Peterson, Minn.S.Ct., 5/7/2009.  Mr. Peterson apparently shot and killed Howard Hines as Mr. Hines sat in the driver's seat of his car; Mr. Peterson shot from his third floor apartment window.  Mr. Peterson pleaded not guilty by reason of insanity and waived a jury trial.  He asked to be allowed to present expert psychiatric evidence during the guilt phase of his trial on the question of his mental state; the trial court said, no.  The court found Mr. Peterson guilty.  The court also rejected Mr. Peterson's mental illness defense during the sentencing phase of the trial.

On appeal, Mr. Peterson said that denying expert psychiatric testimony during the guilt phase violated his due process right to present a complete defense.  As the appellate court has said many times, it again said, no, it doesn't.  See State v. Brom, 463 N.W.2d 758 (Minn. 1990).  The appellate court recognized the two broad exceptions to this prohibition, established in State v. Provost, 490 N.W.2d 93 (Minn. 1992):

(1) the rare situation where there is a mental disorder characterized by the formation of a particular subjective state of mind inconsistent with the pertinent criminal mens rea; or (2) where the defendant has a past history of mental illness and the evidence is in the nature of factual background to explain “the whole man,” such as a clinical record where psychiatric opinions appear.

The appellate court concludes that Mr. Peterson did not satisfy either of these exceptions.  The appellate court then upholds the trial court's rejection of Mr. Peterson's mental health defense.

Finally, the appellate court does decide that the trial court's sentence of life without possibility of release was error.  This was because at the time of the murder, Minn.Stat. 609.185 did not authorize life without possibility of release.  Mr. Peterson beat the effective date of an amendment that authorized that sentence by some six months.  The appellate court modifies the sentence to life with the possibility of supervised release after thirty years.

Court Affirms Upward Departure

State v. Stanke, Minn.S.Ct., 5/7/2009.  Warning:  this is a Blakely Opinion.  Police spotted Mr. Stanke driving a stolen car on I-35W during rush hour; there were also warrants out for his arrest for some burglaries in South Dakota but the Opinion doesn't say whether the officers knew this at the time of the chase.  Fourteen miles into the chase, an officer placed "stop sticks" in the left lane of the interstate.  Mr. Stanke avoided the sticks but in doing so struck and killed the officer, then struck another car, which caused significant injuries to the driver of that car.

Mr. Stanke entered a guilty plea to fleeing a police office resulting in death and to fleeing a police officer resulting in great bodily harm.  Mr. Stanke agreed to waive a Blakely sentencing jury, and agreed that aggravating factors existed that would justify a double upward departure in sentence length.  After a sentencing hearing, the trial court found nine "substantial and compelling" aggravating factors, and one "severe aggravating circumstance" - the officer's particular vulnerability - to justify a statutory maximum sentence of slightly more than a double departure.

The appellate court acknowledges its past pronouncements that police officers are “highly vulnerable when engaged in the performance of their duties.” State v. Brown, 345 N.W.2d 233, 239 (Minn. 1984).  Nonetheless, the statute under which Stanke plead guilty, Minn.Stat. 609.487, accounts for this vulnerability, with its more severe penalties.  The trial court's reliance on the officer's vulnerability was thus error. 

Now the questions becomes what to do about this error.  A greater than double departure requires a "severe aggravating circumstance."  State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981).  Where the aggravating factors only support an improper or inadequate reason for departure, the appellate court usually remands the case.  However, if the appellate court concludes that the trial court would have imposed the same sentence absent reliance on the improper aggravating factor then it will affirm the sentence, State v. Rodriguez, 754 N.W.2d 672 (Minn. 2008).  That's what it does here, substituting its judgment for that of the trial court, affirming the upward departure.  Any or all of the nine "substantial and compelling" aggravating factors could also serve as the required "severe aggravating circumstance."  The factors that the appellate court identifies are:

the high speeds at which Stanke drove; that the chase occurred during rush hour; that Stanke had been using methamphetamine for two weeks before the chase and had not slept during that time; that Stanke injected himself with methamphetamine during the chase; that Stanke was talking on a cell phone during the chase; and that Stanke, at some point, was steering the car with his knee.

Court Rejects Numerous Evidence Rulings in Upholding Murder One Conviction

State v. Hall, Minn.S.Ct., 5/7/2009.  A jury convicted Mr. Hall of first degree murder for the shooting death of his girlfriend's brother, Mr. Moore.  Mr. Moore didn't approve of his sister's relationship with Mr. Hall; the two men squabbled fairly regularly about it.  On the night of the shooting, Mr. Moore stepped outside of his apartment for a smoke.  Mr. Hall's girlfriend, who happened to be visiting her brother, heard two loud pops while Mr. Moore was outside; a friend of Moore's, who was also outside, heard two gunshots, then saw Mr. Hall run to his car and drive away.  Meanwhile, Mr. Moore staggered back into his apartment to tell his sister that "They got me."  He then thought it best to clarify who "they" was, so he added that it was Mr. Hall.

Police arrested and interrogated Mr. Hall, giving him a Miranda advisory.  Mr. Hall made no admissions, stating fairly early on that “I’m not admitting to anything and I’m just talkin’ to you about a story you’re tellin’ me, so, I’m not, until I have a lawyer, you know, I’m not really gonna break down anything. You know?”  At about the midpoint of the interrogation, Mr. Hall asked, “So what’s the deal man? You gonna give me a lawyer or what?”  The response from the police was to keep interrogating him for another forty minutes.

Mr. Hall testified at trial that he did, indeed, shoot Mr. Moore, but that he did so in self defense.  (Other evidence suggested rather convincingly that Mr. Moore was shot in the back through a glass door.)  Mr. Hall raised numerous evidence rulings on appeal. 

First:  Admitting the interrogation up to and including Mr. Hall's question,“So what’s the deal man? You gonna give me a lawyer or what?” The appellate court said that admitting this last question was error, but the error was harmless.

Second:  In the admitted portion of Hall's interrogation he told the police that he had a fifth degree assault conviction.  The appellate court ducks the question whether admitting this statement was error and says that even if it were it was harmless.

Third:  The trial court, on the state's rather vague motion, said that Hall could not inquire about the circumstances under, and the manner in which the police interrogated him.  This motion is becoming something of a standard in Ramsey County, so it's worth stating it; the motion asks that the defense be prohibited:

from inquiring, offering evidence, or commenting upon in the presence of the jury or prospective jurors, the constitutionality of . . . the manner in which statements were taken from the defendant.

This motion, of course, completely ignores the U.S. Supreme Court's decision twenty-three years ago in Crane v. Kentucky, 476 U.S. 683 (1986), where the Court unanimously ruled that the defendant’s right to present a defense was violated when the trial court excluded competent, reliable evidence bearing on the credibility of a confession—specifically, evidence about the setting in which the confession was obtained.   Here, the appellate court makes a rather feeble effort to distinguish Crane, saying that Hall, unlike Mr. Crane, did not actually confess, and that Mr. Hall, unlike Mr. Crane, was not a juvenile; but ultimately abandons that effort, assumes that it was error and decides that it was harmless. 

Fourth:  The trial court said that the prosecutor could refer to Mr. Moore as "the victim."  Mr. Moore said that this undermined his claim of self defense.  The appellate court rejects this claim, suggesting that the use of the phrase would have to amount to appeals to the passions and prejudices of the jury to be error.  Cf., Rairdon v. State, 557 N.W. 2d 318 (Minn. 1996).

Fifth:  Should the trial court have allowed Mr. Hall to introduce evidence of Mr. Moore's prior convictions, to impeach his dying declaration?  Mr. Hall cites numerous opinions from other states that permit such impeachment, but this research failed to move the appellate court, which again ducked the issue, assumed it was error and decided that the error was harmless.

So, for those keeping score:  the appellate court decides two of the five evidence questions - don't admit the part of the interrogation where the defendant asks for a lawyer, and it's okay to call the victim the victim so long as you don't overdo it - and ducks the remaining three.  It's an easy job, said Fox.

Lastly, Mr. Hall complained of the trial court's duty to retreat instruction, which the trial court gave twice.  It first gave the retreat instruction as part of the general self defense instruction, CRIMJIG 7.05; it then repeated the retreat instruction in a separate instruction that self defense requires compliance with the duty to retreat, CRIMJIG 7.08.  The appellate court said that both instructions accurately stated the law, and that the second retreat instruction did not unfairly emphasize one instruction over another.  State v. Peterson, 673 N.W.2d 482 (Minn. 2004).

Uncharged Crime That Occurs In the Same Transaction as the Charged Offense is Not Subject to Spreigl Evidence Analysis.

State v. Hollins, Minn.Ct.App., 5/12/2009.  A paid informant went to Mr. Hollins' apartment asking to purchase crack cocaine from him.  The state claimed that Mr. Hollins then called Mr. Scott, who came over with the goods; Mr. Scott, on the other hand, testified that it was the paid informant who made that call and that Hollins had nothing to do with it.  The state charged Mr. Hollins with aiding and abetting the sale of cocaine, and with conspiracy to do the same.

To buck up its case against Mr. Hollins, the state introduced evidence that Mr. Hollins had been "rolling a blunt" when the paid informant came into Hollins' apartment.  The appellate court reviewed this claimed error under the "plain error" standard because there had been no objection at trial. 

Minnesota has apparently not ruled on the admissibility of otherwise Spreigl evidence that consists of uncharged crimes that occur in the same transaction as the charged offense.  The appellate court fills this jurisprudential gap with this new definition:

In a criminal prosecution, evidence of another crime is intrinsic to the charged crime and therefore admissible without regard to Minn. R. Evid. 404 if: (1) the other crime arose out of the same transaction or series of transactions as the charged crime, and (2) either (a) the other crime is relevant to an element of the charged crime, or (b) excluding evidence of the other crime would present an incoherent or incomplete story of the charged crime.

The appellate court then applies its new rule and finds that evidence of "rolling a blunt" does not satisfy it.  The evidence fails to satisfy either of part (2)'s alternatives of its new rule.  Alas, the error was harmless.

The other issue in the case had to do with a permissive inference instruction: 

A person’s presence, companionship, and conduct after an offense are relevant circumstances from which a person’s criminal intent may be inferred.

Again, there was no objection to this instruction, so plain error is the review standard.  The appellate court finds no error in the instruction because:

An instruction containing a permissive inference will pass constitutional muster if it instructs the jury that (1) the jury may—as opposed to must—draw the inference; (2) the defendant is presumed innocent and it is the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt; and (3) the jury must examine all the evidence in the case.

Discharging Your Lawyer: Breaking Up Is Not So Very Hard To Do

 State v. Paige, Minn.Ct.App., 5/12/2009.  Mr. Paige retrained private counsel to represent him on these murder charges; he eventually plead guilty to second degree murder.  Before sentencing, Mr. Paige sent a letter to the trial judge, asking to discharge his attorney, and to withdraw his guilty plea.  To the discharge request, the trial court said, no, not unless you have another attorney waiting in the wings to commence representing you.  The trial court relied on the rule that governs attorney withdrawal in a criminal case, Minn.Gen.R.Pract. 703, which prevents the court from acting on the withdrawal request unless defendant already had another attorney in place to substitute in as counsel.

The trial court, however, improperly relied on this rule, which says nothing about a defendant's ability to fire his lawyer.  Rather, the trial court must ascertain just how a defendant wishes to proceed after firing counsel; with that knowledge, the trial court then determines whether the request is appropriate.  Mr. Paige gets a redo on his request to discharge counsel.

The trial court also denied the request to withdraw his guilty plea.  The trial court's first ruling had the additional result of leaving Mr. Paige high and dry during his sentencing hearing.  This was because Mr. Paige wanted to fire his lawyer because he believed that counsel had been ineffective.  Counsel, in turn, was reluctant to do anything in the way or advocating for Mr. Paige at sentencing so Mr. Paige effectively had no counsel for that hearing.  The appellate court concluded that the trial court should have recognized the existence of a potential conflict of interest and dealt with it, such as by securing new counsel.  Mr. Paige gets to go back and be heard on his plea withdrawal motion as well.

Erroneous Hearsay Rulings Result in New Trial

State v. Morales, Minn.Ct.App., 4/28/2009.  The state claimed that Mr. Morales, Mr. Vega-Lara, and Mr. Solorzano-O'Brien went into a Minneapolis whorehouse intending to rob its operators; in addition to the robbery, one or more of them committed murder.  The appellate court only gives proper names to the defendants; everyone else gets initials.  There are a lot of initials in use here so let me try to chart out the players.

V.M.-O:  the victim.	M.F.:  a cook at the whorehouse
C.M:  a prostitute	M.G.:  "associate" of Vega-Lara
M.R.:  a prostitute

Okay.  The state's theory was that either Mr. Morales or Mr. Vega-Lara had cased the house as a possible robbery target some days before the actual robbery.  On the date of the homicide, the three men visited the house; Vega-Lara and Solorzano-O'Brien engaged the services of C.M. and M.R., while Morales hung out in the parlor.  When done - according to C.M., Vega-Lara wanted a redo on the sex, but I digress - Vega-Lara and Morales commenced the robbery;  Morales drew a gun on the victim and Mr. Vega-Lara then shot and killed the victim.  Neither prostitute stayed in the parlor during the entire robbery/homicide but each could place Vega-Lara in that room and each heard the struggle and shooting.

The police investigation turned up M.G., who had information about the robbery/homicide.  The state put him up on the stand, which is where the state's trouble started.  To explain, it's time for another chart:

What M.G. told police	What M.G. told the jury
Three days before the murder, Morales told me of the plan to rob a house of prostitution.	Three days before the murder, another person told me of the plan to rob a house of prostitution.
After the murder, Vega-Lara told me that Morales had drawn a gun on the victim and that Vega-Lara had then shot the victim.	After the murder, Vega-Lara told me that another person had drawn a gun on the victim and that Vega-Lara had then shot the victim.

See the problem?  The prosecutor did, easily sliding into naming Morales as the "other person" in her closing argument.  The appellate court agreed with Morales that the redaction thus had been totally ineffective:

Thus, the state was allowed, in effect, to elicit the hearsay statements of Vega-Lara that Morales had a gun on the day of the robbery, walked towards the victim with his gun drawn, and got into a struggle with the victim over that gun.

By now you've deduced that Vega-Lara did not testify at Morales' trial.  Indeed, he "took the Fifth."  Even so, the trial court permitted the state to call Vega-Lara to the stand so that the jury would know of this invocation.  This is because the state had also granted Mr. Vega-Lara use immunity and so the trial court thought that he had no privilege to assert.  This was incorrect, however, because the use immunity granted him did not extend to perjury.

Vega-Lara had testified at his own trial.  So, every time that he refused to answer the prosecutor's question, she commenced to ask Mr. Vega-Lara questions, the theme of which was "Didn't you testify at your trial that [reads statement that implicates Morales from transcript]?"  The appellate court concluded that this was prejudicial to Morales for any number of reasons.  He gets a new trial. 

The appellate court also decided a Spreigl issue, applying the Ness analysis.

Suicide Attempt is Voluntary Absence From Trial

State v. Finnegan, Minn.Ct.App., 5/5/2009.  The state charged Mr. Finnegan with the rape of a fourteen year old.  On the second day of trial Mr. Finnegan failed to appear.  An officer went out to Mr. Finnegan's house and found him unresponsive, and unable to speak, likely the result of a drug overdose.  At the request of the prosecutor, the trial continued to conclusion, a verdict of guilty.  In a decision of first impression in Minnesota, the appellate court concluded that Mr. Finnegan had made a voluntary choice to absent himself from his trial by attempting suicide instead.

Here's what Rule 26.03, subd. 2(1) says about defendant's absence from trial:

Continued Presence Not Required.  The further progress of a trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to waive the right to be present whenever:

     1.  a defendant voluntarily and without justification absents himself or herself after trial has commenced;

The appellate court's focus was only on whether Mr. Finnegan was voluntarily absent without justification as a result of the overdose.  It relied upon an Eighth Circuit Opinion, United States v. Crites, 176 F.3d 800 (8th Cir. 2005), which had also concluded that a suicide attempt was a voluntary absence from trial without justification.  The appellate court did not, as Crites did, consider whether the decision then to continue with the trial was an abuse of discretion.  (Whether the public interest in the need to proceed clearly outweighs that of a voluntarily absent defendant in attending the trial.)  The Second Circuit has apparently adopted a more elaborate checklist by which to make this determination.  United States v. Tortora, 464 F.2d 1202 (2nd Cir. 1972), cert. denied, 409 U.S. 1063 (1972), (identifying factors to consider in this separate question). 

Here's the analysis by the First Circuit to an identical set of facts, which the Minnesota appellate court rejects:

The amount of cocaine Latham ingested was a potentially lethal overdose; the memorandum of his attorney states that the hospital gave him only a 25% chance of survival. Therefore, to conclude that Latham voluntarily absented himself from the trial, one would have to find that he either (a) knowingly took a lethal dose, or (b) had fine-calibrated the dosage so precisely that he would reach a critical medical condition, but would somehow manage to survive. Neither premise withstands scrutiny. It defies common sense to maintain that a sane defendant would attempt suicide to avoid a trial on drug charges. And, death is not the type of “voluntary absence from trial” that concerns us. Alternatively, if one were to find that Latham knew just the right amount of cocaine to ingest, so as to require hospitalization, but avoid death, it would still make no sense for him to have pursued this course because he would end up in custody (hospitalized) and upon recovery would still have to stand trial. This situation is markedly different from fleeing to avoid the trial altogether.

United States v. Latham, 874 F.2d 852 (1st Cir. 1989).

A few weeks back, the appellate court rejected a deaf driver's claim of entitlement to an interpreter during a  DWI arrest.  Who's next?