If You Enter the State, Even In Custody, You Are Subject to the Predatory Registration Statute.

In the Matter of the Risk Level Determination of G.G., Minn.Ct.App., 8/25/2009.  The Wabasha County Attorney charged G.G. with various crimes; at the time G.G. was serving a prison sentence over in Wisconsin.  Because it was a sex crime G.G. was required to register in Wisconsin as a predatory offender.  After a while, Wisconsin sent G.G. over to Minnesota to take care of the Wabasha County charges; G.G. spent about three weeks in the local jail and then returned to Wisconsin.

The Department of Corrections determined that G.G. was also required to register as a predatory offender in Minnesota.  G.G. took issue with this, saying that he had not entered Minnesota and remained for 14 days or longer.  Minn.Stat. 243.166, subd. 1b(b)(2).  G.G. said that entry only counts when it’s volitional. The appellate court concedes that the statutory text is ambiguous so it gets to look at the purpose of the registration statute.  That clinches it; G.G. has to register even when he’s hauled over in handcuffs.

No Entitlement to Voluntary Intoxication Instruction on Reckless Terroristic Threats Charge.

State v. Bjergum, Minn.Ct.App., 8/25/2009.  Mr. Bjergum came to work drunk one day; his employer sent him home, then fired him.  About a month later, a former coworker and her husband separately ran into Mr. Bjergum drinking at a local bar; on each occasion Mr. Bjergum said that if he didn’t soon get his unemployment he would go down to his former workplace and “go postal.”  The state charged him with intentional terroristic threats.  When Mr. Bjergum gave notice of an intoxication defense the state added a second terroristic threats count, this one alleging reckless conduct.  At trial, the court refused to give an intoxication instruction on the reckless terroristic threats count.  As luck would have it, the jury acquitted on the intentional terroristic threats but convicted on the reckless one.  That was the issue on appeal.

Back in 1976, the Minnesota Supreme Court said that voluntary intoxication is a defense if a particular intent or other state of mind is a necessary element of the crime charged.  City of Minneapolis v. Altimus, 306 Minn. 462, 238 N.W.2d 855 (1976).  So, the legal question is whether making terroristic threats with reckless disregard for the consequences requires specific intent.  Mr. Bjergum first argued that there’s no such thing as an unintentional threat and so terroristic threats requires intentional conduct.  The appellate court says that this isn’t so.  A declared threat, say, “I’m going to kill you.” may be just that or it may be a joke.  It’s a crime regardless when the statement would reasonably cause fear that the speaker will act accordingly. 

Next, Mr. Bjergum argued that the recklessness requirement is that “other” state of mind that triggers a voluntary intoxication instruction.  Again, the appellate court rejects this.  Although recklessness requires deliberate action in disregard of a known, substantial risk, it is not the same as specific intent.  The reckless declaration, however intended, may violate the statute.

 

In a Burglary Prosecution the State Cannot Rely Upon the Domestic Abuse Prior Bad Acts Statute to Introduce Evidence of those Prior Bad Acts.

State v. McCurry,Sr., Minn.Ct.App., 8/18/2009.  As G.M. was getting ready for work, an intruder, whom G.M. afterwards identified as her ex-husband, Mr. McCurry, broke into her home.  The intruder stole G.M.’s wallet and left.  G.M. used a ruse by which to meet with Mr. McCurry later that day, at which time the police arrested him.  The state charged Mr. McCurry with burglary and theft.

The McCurry’s had had a contentious relationship and things didn’t let up once the trial started.  The fireworks started right away when the prosecutor asked G.M. what happened after the two of them had met and she became pregnant.  She volunteered that soon after that Mr. McCurry went to prison for attempted criminal sexual assault.  It continued when the state wanted to introduce evidence of all the prior bad acts between them, which the state said was admissible under 634.20.  This statute has noting to do with burglary:

634.20 EVIDENCE OF CONDUCT.

Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

G.M. was prepared to testify to various instances of physical abuse and sexual infidelities during the marriage.  She was also ready to testify about three incidents that occurred shortly before the burglary; in one Mr. McCurry came to her house, argued with her, pushed her and smashed her phone, causing her to flee.  In another, he came to her house through the kitchen window and “stayed with her overnight.”  In the third, he phoned her and made a veiled threat, after which G.M. discovered damage to her car.  The trial court ruled that G.M. could testify to these three incidents and could testify generally that she and Mr. McCurry had had problems.  This ruling was the main issue on appeal.

The appellate court concludes that 634.20 applies only to trials that involve charges of domestic abuse.  That being so, the appellate court looked for other justifications for the admissibility of G.M.’s testimony.  The court concludes that her general evidence about tensions and disagreements was admissible as relationship evidence without regard to the statute or to a Spreigl analysis.  On the other hand, the three specific incidents were admissible only under a Spreigl, analysis.  Since the state didn’t believe it needed to comply with Spreigl, it did not give Mr. McCurry the proper notice; testimony about the three specific incidents was thus not admissible.  Unfortunately for Mr. McCurry, the error was harmless.

Mr. McCurry also complained that the prosecutor commented on his failure to call alibi witnesses.  The appellate court says that such comments are prosecutorial misconduct, but this misconduct was harmless.

The Dangerous Weapon Need Not Have Caused The Substantial Bodily Harm to Support a Conviction of Second Degree Assault.

State v. Harlin, Minn.Ct.App., 8/25/2009.  Mr. Harlin suspected that his girlfriend was cheating on him so he set about to find out.  Mr. Harlin believed that an aggressive approach was required, but instead of water boarding he used a mallet and a hammer; over the next forty five minutes he hit her with one or the other each time he didn’t believe her answers to his questions.  (Still dissatisfied, he tried to hang her by wrapping an electrical cord around her neck.)  Among other things, the state charged Mr. Harlin with second degree assault with a dangerous weapon, substantial bodily harm.

Here’s what the statute says:

609.222 ASSAULT IN THE SECOND DEGREE.
Subd. 2. Dangerous weapon; substantial bodily harm. Whoever assaults another with a dangerous weapon and inflicts substantial bodily harm may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.

Mr. Harlin conceded that he used a “dangerous weapon” and that his girlfriend suffered bruises on her back and a cut to her scalp.  He argued that the state had to prove that the dangerous weapon caused the substantial bodily harm.  The appellate court isn’t buying the argument.  The court says that all that is necessary is an assault that results in substantial bodily harm and that the assault involves the use of a dangerous weapon. 

All Your Car’s Brake Lights Must Work; If Not, There’s Justification To Stop You; An Officer Can Also Stop You For Littering.

State v. Beall, Minn.Ct.App., 8/25/2009.  A Coon Rapids officer saw a car with its center brake light out; worse than that, the officer saw a passenger throw a cigarette butt out the window.  Seeing enough, she pulled the car over.  Noticing an alcohol smell, the officer administered a field sobriety test to Mr. Beall, on which he registered .212.  The officer arrested Mr. Beall; at the station, his Intoxilyzer reading was .210.

The district court concluded that because Mr. Beall’s car had two working brake lights as required by Minn.Stat. 169.57, subd. 1(a) the officer had no basis on which to have stopped the car.  Further, littering was not “really an issue.”  The state appealed the suppression of its evidence.

The problem was, the trial court overlooked a different subsection of the statute, 169.57, subd. 3(a), which says that no matter how many you have all of your “stop lamps” have to be working:

[W]hen a vehicle is equipped with stop lamps or signal lamps, such lamps shall at all times be maintained in good working condition.

The appellate court rejects Mr. Beall’s argument that his just refers to the two “stop lamps” that the other subsection mentions.  So, two out of three isn’t good enough; the officer’s observation of the burnt out center brake light gave her justification to stop the vehicle.

To add insult to injury, although littering is a petty misdemeanor, the officer’s observation of it also justified the stop.

Exigent Circumstances, Genital Searches Incident to Arrest – Well You Have to Read It.

State v. Lussier, Minn.Ct.App., 8/18/2009.  At around two in the morning, officers met up with a woman who was wrapped in a blanket, shaking, crying uncontrollably as she reported that she had just been raped inside the next door garage.  The officers checked out the garage, during which they saw various items of female clothing, condom wrappers, and a make shift bed, among other things.  The officers did not see anyone inside the garage.  Roughly an hour later, the officers decided that the rape suspect was inside the house next to the garage, perhaps destroying evidence, such as body fluids.  The officers knocked on the door but got no response so they forced themselves inside.  They found Mr. Lussier inside.  The officers swabbed Mr. Lussier’s bleeding hands, then took him to the hospital for a sexual assault exam.  At the hospital, someone combed his pubic hair and swabbed his cheek, swabbed his hands (again) and swabbed his penis.  All this without a warrant.

The trial court suppressed the evidence obtained during the search of the residence, and the evidence obtained during the sexual assault exam.  The trial court said that there were no exigent circumstances to support the residence search and the sexual assault exam was a fruit of the unconstitutional residence search.  The state appealed this pretrial ruling and gets a split decision.

Although the U.S. Supreme Court has never really settled the question, Minnesota has utilized one of two tests to determine the existence of exigent circumstances:  either a single factor or by the totality of the circumstances.  State v. Gray, 456 N.W.2d 251 (Minn. 1990).  Once such single factor is the imminent destruction or removal of evidence.  Under both tests, the standard is an objective one:  whether the officer reasonably believed that Mr. Lussier was capable of destroying evidence.  That officers had been told by a neighbor that Mr. Lussier was most likely extremely drunk and asleep is interesting but not determinative.  The possible destruction of evidence thus justified the entry into the residence without a warrant.

That said, the hospital exam cannot be excluded as the poisonous fruit.  On the other hand, the examination at the hospital of Mr. Lussier’s genitals was not a valid search incident to a lawful arrest.  First, it may be okay to look at Mr. Lussier’s penis, State v. Riley, 303 Minn. 251, 226 N.W.2d 907 (1975), but that’s a far as it goes without a warrant (or, I suppose, consent).  Moreover, Mr. Lussier was handcuffed and under constant police observation during the exam, which brings this exam within the orbit of Arizona v. Gant, 129 S.Ct. 1710 (2009) (“If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.”).

Permissive Consecutive Sentencing on a DUI Is At A Zero Criminal History Score

State v. Johnson, Minn.Ct.App., 8/18/2009.  An officer down in Scott County stopped Mr. Johnson, apparently on suspicion of driving while impaired.  He was.  The state charged him with gross misdemeanor driving after cancellation and with felony first degree driving while impaired.  He pled guilty to both charges, with an agreement for the court to sentence him first on the gross misdemeanor.

His criminal history score was eight.   The district court gave Mr. Johnson a year in jail on the gross misdemeanor.  The trial court used the history score of 8  and imposed a stayed sentence of 102 months, consecutive to the gross misdemeanor, which was a departure from the guideline sentence of 75 months executed.  Later, the district court reduced the sentence on the felony to 75 months, again using a history score of eight.

Mr. Johnson appealed, saying that the trial court should have sentenced him at the zero history score level.  The appellate gets to that after first pointing out that permissive consecutive sentencing for the felony is authorized by statute, Minn.Stat. 169A.28, subd. 3:

The court may order that the sentence imposed for a violation of section 169A.20 (driving while impaired) run consecutively to a previously imposed misdemeanor, gross misdemeanor, or felony sentence for a violation other than section 169A.20.

When it came time to sentence of the felony, he had the requisite “[just] previously imposed … gross misdemeanor … sentence for a violation other than section 169A.20.

The real fight is over the history score, zero (for permissive consecutive sentencing) or eight.  The state argued that because Guidelines II.F.2. says nothing about permissive consecutive sentencing for a felony driving while impaired then the actual criminal history score wins.  The state’s argument is based on this language from II.F.:

Except when consecutive sentences are presumptive, consecutive sentences are permissive (may be given without departure) only in the following cases . . . .

And then it lists seven instances where permissive consecutive sentencing is okay, none of which is remotely close to a felony driving while impaired sentence.  The appellate court says, no, anyway, that the correct history score is zero, mostly because it doesn’t like the result.  While the appellate court correctly points out that the statute, 169A.28, subd. 3 is more specific than the guidelines, the statute is totally silent on what criminal history score to utilize so the court’s footnoted reliance on this argument is somewhat thin.  Nonetheless, Mr. Johnson wins and gets to go back for a new sentencing hearing with a zero history score.

Whether the Inclusion in a Complaint of only a Victim’s Initials Suffices to Enable a Determination of Probable Cause is a Case By Case Determination

State v. Dunson, Minn.Ct.App., 8/18/2009.  The criminal complaint in this (and a companion) case identified the victims only by initials.  The names were disclosed in discovery materials provided under the criminal rules.  The trial court, on its own, ruled that the use of initials in the complaints violated the rules of criminal procedure and due process requirements of the federal and state constitutions.  The trial court said that the name of the victim was an essential element of a complaint, the absence of which precluded a finding of probable cause.  Accordingly, the complaints were dismissed.  The state appealed.

First, it’s an appealable order. 

Second, it is generally unnecessary for purposes of determining probable cause to include the actual names of the victim of the alleged offense.  Rule 2.01 requires only that the trial court determine that an offense has been committed and that the charged defendant committed it.  The appellate court could find no requirement in this rule or any other rule that the actual name of the victim be stated in the complaint.  As a due process/notice requirement, whether the charging document adequately identifies the alleged victim through information other than a name is a fact specific question; a blanket pronouncement that the actual name must be provided in order to apprise a defendant of the nature and cause of the accusations against him goes too far.

A Hearing To Consider Conferring Use Immunity is not a “Critical Stage” at Which a Defendant Has a Right to be Present.

State v. Booker, Minn.Ct.App., 7/28/2009.  Two men, one of whom was alleged to be Mr. Booker, robbed a taxicab driver at gunpoint.  The investigating officer got the cell phone number used to order the cab and traced it back to an apartment located at the same address that the taxicab driver had picked up the two men.  R.G. lived at this apartment and he did not fit the description of the two assailants.  He did lead the officer to two men who had come to his apartment at the time of the robbery:  J.R., and Duckworth.  R.G. picked photos of both of these men from a photo array.

The investigating officer then built two photo arrays to show to the taxicab driver; one had J.R. as the suspect and the other had Duckworth; neither array contained a photo of Mr. Booker.  The officer showed the arrays to the taxicab driver, who picked J.R. and Duckworth from them.  Finally, the officer showed the taxicab driver one last photo array, intended to rule out J.R. as a suspect; it contained a photo of Mr. Booker.  The taxicab driver then said that he had been wrong about J.R. but that he was 100 percent certain that Mr. Booker was the person who had pointed the gun at him.

But all of this has little to do with the meat of the Opinion.  Rather, the central issue was whether Mr. Booker had a right to be present when the trial court pondered whether Mr. Duckworth could assert a Fifth Amendment privilege and refuse to testify.

Duckworth gave a confession of sorts; it at least put Booker in the cab – the right cab – at the time of the robbery.  Duckworth, however, got cold feet and refused to testify at Booker’s trial, whereupon the state offered him use immunity.  Because Duckworth had already been tried and convicted for his roll in the robbery, the trial court held a hearing to determine whether Duckworth still had a Fifth Amendment privilege to assert; the trial court held this hearing in secret with neither Mr. Booker nor his attorney present.  When Booker’s attorney complained, the trial court held a second hearing after which it ordered Duckworth to testify.

On appeal, Mr. Booker argued that he had a right to be present at the first hearing where the court considered whether there was a Fifth Amendment privilege to be asserted.  The appellate court rejects this argument for three reasons:  the rules of criminal procedure don’t mention hearings under the use immunity statute, 609.09; the statute only requires notice to the person whose testimony is to be compelled, omitting any reference to the defendant; case law suggests that use immunity is often granted before the start of the trial, without the presence of either the defendant or counsel.  Although the appellate court said there were three reasons, it actually mentions a fourth one:  a defendant has no standing to challenge the court’s ruling to grant immunity.

Mr. Booker made various pro se challenges to the identification procedures, all of which the appellate court rejected.

Admission of Prior Bad Acts, Offered to Prove Motive, Was Proper.

State v. Burrell, Minn.S.Ct., 8/20/2009.  Mr. Burrell has been twice convicted for the shooting death of Tyesha Edwards, age eleven;  Mr. Burrell was shooting at someone else, Timothy Oliver.  One of the bullets went through Mr. Oliver’s pants before it struck Edwards.  Mr. Oliver and Mr. Burrell were members of rival gangs at the time; (Mr. Oliver died in between the two trials.)  The Minnesota Supreme Court reversed Mr. Burrell’s first conviction, a judge convicted him again, and he again appealed.

The trial court permitted the state to elicit evidence of four “prior bad acts.”  First, that some years back Mr. Burrell had shot at one of the state’s witnesses, Dameon Leake; Mr. Leake testified that Mr. Burrell told him that he’d been trying to “smoke Little Timmy” when Edwards got killed.  The state was also allowed to elicit evidence from another of its witnesses, Terry Arrington, that Mr. Burrell had shot at Mr. Arrington and Mr. Oliver some time before the Edwards shooting, all the while saying “What up, Blood.” as he fired.  Mr. Arrington testified that Mr. Burrell had told him that the bullet that hit Edwards had first gone through Oliver.  Next, Deleon Walker testified that Mr. Burrell had shot at him some years back; as with the Edwards shooting, Mr. Burrell missed Mr. Walker but struck another person instead.  Finally, Mr. Burrell’s ex-girlfriend testified that Mr. Burrell had shot at the occupants of a passing car as those occupants shot back.

On appeal Mr. Burrell challenged the introduction of all this prior bad acts evidence.  The trial court had allowed in this evidence to prove motive.  Mr. Burrell contended that the prior act, when offered to prove motive, must be of a “but for” character:  if not for the bad acts, the defendant would have had no reason to commit the charged offense.  The appellate court rejected this contention.  The question is whether the evidence is material and relevant; if so, then the next question is whether the probative value weighed against the potential for unfair prejudice.  The appellate court answered both questions, yes.  It’s important to emphasize that the prejudice question may have received a different answer had this been a jury trial.

Mr. Burrell also challenged the introduction of certain gang testimony from a “gang expert.”  The appellate court assumed without deciding that some of the testimony was erroneously admitted but said it was harmless.  The issue at trial had been whether Mr. Burrell was the shooter; because none of the gang testimony alleged that Mr. Burrell was the shooter its admission was harmless.

Finally, the state conceded that the trial court could not impose a sentence that was longer than the original sentence.  See Hankerson v.State, 723 N.W.2d 232 (Minn.2006).

“Cornerhouse” Interview of Child Sexual Abuse Victim is “Testimonial” under Crawford.

Bobadilla v. Carlson, 2009 WL 2392182, C.A.8 (Minn. 2009).  See State v. Bobadilla, 709 N.W.2d 243 (Minn. 2006).   The Minnesota Supreme Court had ruled that a social worker’s interview of a child sexual abuse victim was not “testimonial” under Crawford v. Washington, 541 U.S. 36 (2004).  The trial court could, therefore, admit the interview when the child was unavailable because of young age (incompetent).  The Eighth Circuit effectively reversed the Minnesota Supreme Court.  Here’s the salient paragraph from the Opinion of the Eighth Circuit, granting Mr. Bobadilla’s federal habeas petition and ordering a new trial:

Crawford held that statements taken by police officers in the course of interrogations are testimonial under even the narrowest standard, and it was unreasonable for the Minnesota Supreme Court not to conclude the interview of T.B. was, in all relevant aspects, a form of police interrogation. First, the interview was initiated by a police officer. Second, the interview was conducted for the purpose of the criminal investigation. Although Molden contacted T.B.’s mother, the evidence demonstrates it was Detective Akerson who requested Molden to do so. Furthermore, Molden stated Detective Akerson asked her to “assist him” in questioning T.B. and
that she was not involved in the criminal investigation until Detective Akerson “asked [her] to assist him.” Third, the interview was not conducted until five days after the
abuse was first alleged, which indicates the purpose of the interview was to confirm a past allegation of abuse rather than to assess immediate threats to T.B.’s health and welfare. Because of these circumstances, this interview was no different than any other police interrogation: it was initiated by a police officer a significant time after the incident occurred for the purpose of gathering evidence during a criminal investigation.

The Eighth Circuit also points to two more recent U.S. Supreme Court Opinions, which it says “strongly supports” its conclusion:  Davis v. Washington, 126 S. Ct. 2266 (2006) (holding that statements made during a 911 emergency call were not testimonial, while statements made to a police officer after the danger had passed were testimonial); and Melendez-Diaz v. Mass., 129 S. Ct. 2527 (2009) (holding that lab analyses introduced into trial are testimonial).

The Eighth Circuit also rejected the state’s reliance on Minn.Stat. 626.526, which authorizes social workers to interview alleged victims of abuse for the purpose of protecting their health and welfare.  At the same time, the statute requires that the interview be recorded and that the social worker coordinate the interview with the police in order to eliminate the need for multiple interviews. 

When Imposing a “Minimum Term of Imprisonment” For a Criminal Sexual Conduct Life Sentence, The Guidelines Apply in Establishing That “Minimum Term”.

State v. Hodges, Minn.S.Ct., 8/13/2009.  A grand jury indicted Mr. Hodges on one count of criminal sexual conduct in the first degree, and on one count of criminal sexual conduct in the third degree.  For both counts, the indictment included a statutory reference to Minn.Stat. 609.3455, a subdivision of which carries a life sentence (but with eligibility for supervised released after service of a “minimum term of imprisonment”).  The statute requires that the trial court state at sentencing what the “minimum term of imprisonment” is; the court is to base that minimum term on either the sentencing guidelines or any applicable mandatory minimum sentence.

Mr. Hodges pleaded guilty to criminal sexual conduct in the third degree.  He waived his right to a Blakely sentencing jury; he and the state agreed that the “minimum term of imprisonment” would be 270 months.  The trial court imposed a life sentence, with the 270 month minimum term of imprisonment.  It justified the 270 month term by concluding that either the guidelines did not apply or that there were seven aggravating factors to support the sentence under the guidelines (which called for a presumptive sentence of 91 months).

The appellate court concluded that the guidelines do apply.  It rejects Mr. Hodges’ argument that the state had failed to give timely notice of its intent to seek an upward departure, pointing to the stipulation in the plea agreement for a minimum term of imprisonment that exceeded the presumptive guidelines sentence.  The appellate court goes on to conclude that the aggravating factors supported the departure, and that the factors were “severe,” thus satisfying the requirements for a greater than double departure.

Supreme Court Says a Defendant Sort of Has a Due Process Right to Call Witnesses at a Bail Hearing

State v. LeDoux, Minn.S.Ct., 8/13/2009.  The state charged Mr. LeDoux with a cornucopia of crimes:  criminal sexual conduct in the first degree, possession of pornographic works involving minors, possession of a controlled substance in the fifth degree, and furnishing alcohol to a minor.  The district court set a combined bail in the amount of $263,000.00.  Mr. LeDoux thought that amount was a bit much and wanted to present witness testimony to prove it.

The corrections officer who prepared the bail study interviewed several people, after which the officer recommended that the bail amount was supported by the facts, and by the “community reaction” to Mr. LeDoux’s alleged crime spree.  Mr. LeDoux’s attorney then subpoenaed the witnesses whom the corrections officer had interviewed and the corrections officer.  The trial court quashed the subpoenas and ruled that Mr. LeDoux had no right to call witnesses at a bail hearing.  The trial court did, however, permit Mr. LeDoux to make an offer of proof.  It’s worth reproducing the summary of this offer of proof (although you can skip it if you just want to know how it all comes out):

First, LeDoux offered proof to rebut statements by the witnesses in the bail-bond study that they were “terrified” of him or regarded him as a threat to the community. LeDoux offered information that in the years since the alleged sexual assault on the juvenile victim, he and the victim became closer and frequently had non-sexual contact with each other. He also offered proof that the victim’s mother would testify that, despite her desire to avoid contact with LeDoux, she had helped him obtain health insurance and mental health counseling. In addition, LeDoux offered proof that his ex-girlfriend was not terrified of him because, despite the fact that she had obtained an order for protection she had repeatedly contacted him in jail.
LeDoux also made offers of proof as to his good character. LeDoux made an offer of proof that a counseling psychologist who was a friend of his mother would say that LeDoux was a person of good character and was not a threat to the community. He also offered proof that his mother would allow him to live with her, would assist him after his release, and believed that LeDoux did not represent a threat to the community.

Finally, LeDoux attempted to call as a witness the corrections officer who prepared the bail-bond report. LeDoux claimed that the officer would testify as to LeDoux’s lifelong residency in the area, lack of family ties outside the area, and lengthy employment history. LeDoux wanted the opportunity to cross-examine the officer about his conclusions as to LeDoux’s mental condition.

About the only concrete thing that the appellate court did was to say that “community reaction” is not a proper basis on which to establish the amount of bail.  The appellate court next concluded that the bail amount, which Mr. LeDoux could not meet, infringed his liberty interests.  It ducks deciding whether the imposition of pretrial release conditions also infringes a liberty interest, although it refers to a rather old opinion saying that it does.  Finally, it gets to the meat of the opinion, whether Mr. LeDoux can call witnesses at a bail hearing.

The answer is yes, maybe.  Here’s the test that the court enunciates but does not apply to Mr. LeDoux because while all the appeals were going on he went and pleaded guilty:

[W]e hold that at a bail hearing, a defendant may only call a witness if the defendant makes a persuasive offer of proof that the witness’s testimony, when considered in the context of all the other relevant available information, will lead to either release without bail or a reduction in the bail amount to a level that would result in the defendant’s release.

The appellate court lifts this test language from State v. Rud, 359 N.W.2d 573 (Minn. 1984).  That opinion answered the question whether a defendant could call the victim to testify in a probable cause hearing.  Just how trial courts will apply this variation of the Rud test in the bail hearing context doesn’t seem hard to predict and in any event won’t be disturbed absent an abuse of discretion.

Trooper Had Probable Cause to Arrest Both Car Occupants For Cocaine Possession; and Did Not Unreasonably Detain Passenger During Vehicle Search.

State v. Ortega, Minn.S.Ct., 7/30/2009.  Back in August, 2004, a State Trooper stopped a car for speeding and for not displaying a front license plate.  Mr. Ortega was the front passenger in this car.  The trooper thought that the driver, Ms. Sorg, was “overly nervous';” he also observed that the pulse in her neck was visible and that she constantly smoked.  Mr. Ortega made the mistake of looking straight ahead, avoiding looking at the trooper.  Oh, the trooper also smelled a “faint odor of burnt marijuana.”

The trooper checked Ms. Sorg’s license plate and driver’s license, finding nothing amiss.  Nonetheless, he “asked” Ms. Sorg to get out of the car so that the two could chat outside Mr. Ortega’s hearing, apparently about drugs.  Ms. Sorg denied any drug usage in the car but would not answer questions about marijuana.  The trooper then asked for consent to search the car; Ms. Sorg consented.  The trooper had Ms. Sorg stand at the front of the car; he had Mr. Ortega get out of the car.  The trooper frisked Mr. Ortega, who gave him a pocket knife and a small amount of grass; the trooper then had Mr. Ortega join Ms. Sorg at the front of the car.

Did I mention that the trooper had a drug dog with him?  He did; the dog alerted all over the car so the trooper easily enough found a rolled up dollar bill in the center console cup holder, which had residues that field tested positive for cocaine.  The trooper then arrested both Ms. Sorg and Mr. Ortega; during a search of Mr. Ortega, the trooper found another rolled up dollar bill in his pants pocket which also had residues that tested positive for cocaine.

Mr. Ortega moved to suppress the evidence of the rolled up dollar bill that the trooper found in his pants pocket.  The appellate court concludes that the odor of burnt marijuana and the rolled up, cocaine laced dollar bill in the center console provided enough suspicion that Mr. Ortega possessed that dollar bill constructively with Ms. Sorg so that the trooper was justified in arresting them both.  The trooper could then search Mr. Ortega’s pants pockets incident to that arrest.

Mr. Ortega also complained that the trooper unlawfully detained him longer than he should have.  Specifically, he argued that once he gave the trooper the non-criminal amount of marijuana the trooper was required to issue a citation and send him on his way.  Mr. Ortega would then have abandoned Ms. Sorg to her own fate and the trooper would never have found the rolled up, cocaine laced dollar bill in his pants pocket.  The appellate court rejected this complaint, on officer safety grounds.

Expungement Does Not Extend to Executive Branch Records

City of Crystal v. N.G.K., Minn.Ct.App., 7/28/2009.  A court convicted N.G.K. of gross misdemeanor theft eleven years or so ago.  Potential employers kept turning him down for jobs, and N.G.K. worried that he would not be able to get a loan to buy a house.  So, he petitioned to expunge the conviction, serving everyone imaginable with a copy of the petition, including the City of Crystal.  After a hearing, the district court exercised its inherent authority and ordered that judicial records be sealed.  The court also ordered that executive branch offices seal documents that were “generated as part of judicial proceedings,” language that the court lifted from State v. V.A.J., 744 N.W.2d 674 (Minn. App. 2008), review denied (Minn. Oct. 1, 2008).

Unfortunately, after V.A.J., the Supreme Court weighed in with State v. S.L.H., 755 N.W.2d 271 (Minn. 2008), which enunciated a different standard by which courts were to exercise its inherent authority to seal executive branch records.  S.L.H. said that the exercise of inherent authority is limited to “that which is essential to the existence, dignity, and function of a court because it is a court.”  Adverse experiences job hunting don’t pass the test.

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.