2/25/2013: No Published Court of Appeals Criminal Opinions Today

Supreme Court Oral Argument Calendar, Summary of Issues, March 2013

Argument  calendar, which includes summary of issues, is available here.

2/20/2013: No Published Minnesota Supreme Court Opinions Today

2/19/2013: No Published Court of Appeals Criminal Opinions Today

Nothing more to say.

Friday Sidebar: Meteor Explodes over Russa

http://www.youtube.com/watch?feature=player_detailpage&v=iCawTYPtehk

Because No Exceptions to Two Year Limitations Applies, Summary Denial of Post Conviction Petition No Abuse of Discretion

Berkovitz v. State, Minn.S.Ct., 2/13/13.  Ms. Berkovitz’s convictions for first degree murder and attempted first degree murder became final back on February 1, 2006, so she had until February 1, 2008 to file her post conviction petition.  She filed that petition, however, on February 15, 2012.  To stay in court her petition had to satisfy one of the five exceptions in the statute.  Ms. Berkovitz alleged that the trial judge was biased against her, that her trial counsel was ineffective, and that one of her public defenders had a conflict of interest.  She argued that these claims fit within either of two exceptions:  newly discovered evidence and interests of justice.

Justice Stras, for a unanimous court, said that her claims met neither of those exceptions.  Part of the newly discovered evidence exception requires a petitioner to establish that the newly discovered evidence makes her innocent of the crime.  Well, even if you accept all three of her legal claims, none of them proves that she didn’t kill one person and attempt to kill another.  But, on the first two legal claims the court is unwilling to conclude that there is newly discovered evidence in them; and on the third there’s no suggestion of innocence.

For the interests of justice exception, the petition can’t be frivolous, and reviewing it is in the interests of justice.  A frivolous claim is one in which “it is perfectly apparent, without argument, that the claims in the petition lack an objective, good-faith basis in law or fact.”  Wallace v. State, 820 N.W.2d 843 (Minn. 2012).  Now, in Wallace, Justice Stras said that each of a petition’s claims must pass the not frivolous test. 

Under the plain language of subdivision 4(b)(5), therefore, a postconviction court must consider the whole petition in assessing whether a petitioner has satisfied the interests-of-justice exception, not just whether some of the individual claims in the petition are frivolous or fail to satisfy the interests-of-justice requirement

Here, he says:

a petition for postconviction relief is frivolous only if every claim in the petition lacks an objective, good-faith basis in law or fact.

This spin on Wallace seems to say the opposite, that if any of the claims pass the non frivolous test then the petition survives. 

In any event, all of Ms. Berkovitz’s claims are deemed frivolous so the summary dismissal of the petition is affirmed.

2/11/2013: No Court of Appeals Published Criminal Opinions Today

Says it all.

2/6/2013: No Published Supreme Court Criminal Opinions

However, the court did grant review in a number of cases, including these two:

State v. Wenthe, about which I wrote here.  The court of appeals reversed Mr. Wenthe's conviction.  The state sought review of that reversal and the defense sought review on the facial constitutionality (Establishment Clause) of Minn.Stat. 609.344, subd. 1(1).

State v. Juarez, review granted of an unpublished opinion of the court of appeals, available here.  The issue is the constitutionality of life without possibility of release for certain repeat sex offenders under Minn.Stat. 609.3455, subd. 2(a)(2).

Witness Recantation Claim in Post Conviction Petition & Affidavit Entitles Petitioner to Evidentiary Hearing

Martin v. State, Minn.S.Ct., 1/30/2013.  A jury convicted Mr. Martin of first degree premeditated murder, and crime committed for the benefit of a gang; the court sentenced him on the premeditated murder conviction to life without possibility of release.  Mr. Martin was seventeen at the time of the offense.  The Minnesota Supreme Court affirmed his conviction, State v. Martin, 773 N.W.2d 89 (Minn. 2009).  Read about it here.  Mr. Martin filed a post conviction petition thereafter, which the post conviction court summarily denied.

Mr. Martin alleged witness recantations by the only two state witnesses who testified that Mr. Martin was one of the two who had shot the victim:  Mr. Pettis and Mr. Mack-Lynch.  Each provided an affidavit.  Mr. Pettis said in his affidavit that the first time he saw Mr. Martin was in a holding cell at the jail the day before Mr. Martin’s trial, and that the prosecutor pressured him into testifying that he saw Mr. Martin kill the victim, Mr. Lynch.  Mr. Mack-Lynch said in his affidavit that contrary to his trial testimony that he saw Mr. Martin shoot Mr. Lynch, he actually did not witness the shooting.  These affidavits entitled Mr. Martin to an evidentiary hearing; the affidavits presented competent material evidence that if found to be true following an evidentiary hearing could entitle Mr. Martin to a new trial.

Breaching of Time Deadlines –Without Objection - by Which to Hold Certification Hearing Does Not Divest Juvenile Court of Subject Matter Jurisdiction.

In the Matter of the Welfare of:  R.D.M., III, Minn.Ct.App., 1/28/2013.  There is a juvenile statute, Minn.Stat. 260B.125, subd. 2(4), that says that hearings to certify a juvenile to adult court must be held within 30 days of the filing of the certification motion unless good cause is shown, in which case the hearing had to be held within 90 days of the filing of the motion.  The juvenile delinquency rules also establish a 90 day deadline for certification hearings. but the rule also says that the juvenile may waive the right to the scheduling of the hearing.  No one disagreed that the certification hearing in this case did not occur within the 90 day deadline.  R.D.M. argued that because of missing this deadline the juvenile court lost subject matter jurisdiction to hear it at all.

The court of appeals rejected this argument, saying that the failure to comply with the time requirements does not deprive the juvenile court of subject matter jurisdiction to hear and determine the certification motion.  It may be that had R.D.M. challenged the untimeliness of the certification hearing he would be entitled to relief.  However, not only did R.D.M. not object or otherwise complain about the untimeliness of the certification hearing, he actually contributed to it both by agreeing to waive the time requirements and then requesting a continuance of the (already late) hearing.

No Published Court of Appeals Criminal Opinions Today

2/4/2013.  No published criminal opinions today.  For those keeping score.  For January:

Published Criminal:  02

Published Juvenile:  01

A Defendant Has State Constitutional Right to Assistance of Counsel at Restitution Hearing

State v. Maddox, III, Minn.Ct.App., 1/28/2013.  The district court ordered Mr. Maddox, III to pay restitution in the total amount of just over six grand.  Mr. Maddox, III challenged the restitution order and appeared for a hearing.  He appeared without an attorney; neither the court nor the prosecutor told him that he had a right to counsel so he didn’t waive that right.

And just what right might this be, anyway?  It turns out that a restitution hearing is a “critical stage” of the state’s prosecution of a criminal defendant to which an accused’s right to counsel applies.  This is because certain legal rights may be lost if not exercised.  Critical stages are:

proceedings between an individual and agents of the State . . . whether formal or informal, in court or out, that amount to trial-like confrontations, at which counsel would help the accused in coping with legal problems or meeting his adversary.” Rothgery v. Gillespie Cnty., Tex., 554 U.S. 191 (2008).

The court of appeals has previously held that payment of court-ordered restitution is a part of a criminal “sentence.”  State v. Hughes, 742 N.W.2d 460 (Minn.Ct.App. 2007).  The question is whether that holding extends to the restitution hearing.  The court of appeals says that under the Minnesota Constitution, a restitution hearing is part of a criminal “sentence.”  A handful of states agree:  Alabama, Colorado, Florida, Iowa, Oregon, Arizona, Kansas, Utah, Washington State,

Defendant's Statement Was the Fruit of Her Unlawful Arrest, but it's Admission was Harmless Error

State v. McDonald-Richards, Minn.S.Ct., 1/23/2013.  Ms. McDonald-Richards drove her boyfriend, Calvin Anderson, and Anderson's friend, Johnny Perry, to Avi's Paw & Jewelry in Richfield.  While she waiting in the car, the two men went inside the store and robbed it, during which Mr. Perry shot a customer and a store clerk.  The customer died.

Police released surveillance photos from the store.  A citizen identified Mr. Anderson, as did his probation officer.  The PO told the police that Mr. Anderson lived with Ms. McDonald-Richards.  One day after the robbery, police officers saw Ms. McDonald-Richards leave his residence, drive to north Minneapolis where she picked up Mr. Anderson.  An army of officers, weapons drawn, then stopped the car, ordered Ms. McDonald-Richards out of the car, cuffed her, placed her in a squad car, and took her to jail.  After spending two hours in a locked holding cell, a police detective interrogated her.  She denied being at Avi's on the evening of the robbery and claimed that her car had been missing that evening until Mr. Anderson showed up with it late that night.  She denied either recognizing or knowing Mr. Perry, and said that Mr. Anderson instructed her to tell anyone who asked that he'd been fishing all day on the day of the robbery.  At the end of the interrogation police released her.

Meantime, officers interrogated Mr. Anderson, who gave up Mr. Perry, who gave up Ms. McDonald-Richards.  Two days later, officers enticed Ms. McDonald-Richards back down to the police station, purportedly so that she could get her car back.  Instead, after a Miranda warning, officers again interrogated  her.  Eventually, she made various admissions about her participation in the events of the robbery and homicide, including that she drove both men to and from the robbery.  For that the state charged her with aiding and abetting first degree murder and attempted first degree murder.  At trial, she claimed that she had not knowingly and intentionally assisted the two men in committing the murder and attempted murder.

Ms. McDonald-Richards moved to suppress both statements as the fruit of her unlawful arrest during the traffic stop.  The trial judge denied that motion and admitted both statements.  On appeal, she only challenged the admission of the first statement.  The state agreed that the arrest had been unlawful but admissible nonetheless because any taint from that unlawful arrest had been sufficiently purged.  Chief Justice Gildea, for six members of the court (Justice Wright not participating), held that intervening events following the unlawful arrest had not undone the taint from it.  The court employed the factors identified in Brown v. Illinois, 422 U.S. 590 (1975) and adopted by the Minnesota Supreme Court in State v. Weeks, 312 Minn. 1, 250 N.W.2d 590 (1977), which include: "whether the police provided a Miranda warning, the time between arrest and confession, “the presence of intervening circumstances,” and “particularly, the purpose and flagrancy of the official misconduct."  

Here's what the trial court thought had purged the effect of the unlawful arrest:

[T]he district court concluded, among other things, that McDonald-Richards’  statement  was admissible because police gave her a  Miranda warning, she was held for “a relatively short” period, the “flagrancy of the violation” was “lessened[] because there was a reason” for police to stop McDonald-Richards’ car, and police treated her well and were not “confrontative.

The chief justice goes through the Brown/Weeks factors and concludes that the trial court was wrong to have admitted the statement.  However, the court does hint ever so softly that perhaps the police could have held Ms. McDonald-Richards as a material witness instead of "arresting" her.  The court also concludes that the error in admitting the statement was harmless beyond a reasonable doubt.

A Segway is Not a “Motor Vehicle”

State v. Greenman, Minn.Ct.App., 1/22/2013.  Segway is “the world’s leading provider of personal electric balancing transportation.”  Mr. Greenman wobbled his Segway along a walking path, then onto a public road on which he twice drifted across the center line before an officer pulled him over.  Mr. Greenman’s alcohol concentration was .19; the state charged him with third degree DWI.  Mr. Greenman said that his Segway was not a “motor vehicle” under Minnesota law and so he could ride his personal electric balancing transportation device drunk if he wanted to.  The district court agreed and threw out the charges.  The court of appeals follows suit, upholding the dismissal.

Recall that the court of appeals has held that a motorized wheelchair is not a “vehicle” for DWI purposes.  State v. Brown.  Mr. Brown, who is physically disabled, operated a wheelchair scooter, which the court of appeals said he used as a substitute for walking.  He was, therefore, a pedestrian.  Same for Mr. Greenman, only for him it was a matter of personal choice.  As far as we know, Mr. Greenman could walk just fine.  The traffic code excludes “an electric personal assistive mobility device” from the definition of “motor vehicle”.  A Segway is one of those devices and is excluded from the DWI laws.  Roll on. 

1/16/2013: No Published Criminal Opinions Today

1/14/2013: No Published Criminal Opinions from Court of Appeals

Read the Title, says it all.

No Supreme Court Criminal Opinions Today

“It’s an easy job,” said Fox.

No Published Court of Appeals Criminal Opinions

1/7/13:  The court of appeals issued no published opinions today.

No Published Court of Appeals Criminal Opinions, But Important Unpublished Opinion on Granting a Defendant Use Immunity During Probation Revocation Hearing Based on Allegation of New Crime

State v. Watts, Minn.Ct.App. (12/31/2012, Unpublished).  Well, that’s a mouth full up there in the title bar.  This is a recurring play for prosecutors and the courts, especially in domestic abuse cases.  A defendant is placed on probation with the condition that he remain law abiding.  He doesn’t.  He goes back to his baby mama’s crib despite the domestic abuse no contact order; everything’s fine for a few hours, days, then the 911 call and the new criminal charge.  The state moves to revoke the probation, based solely on the new charge.  Defendant moves to postpone the hearing pending resolution of the new charge, arguing, in part, that he can’t testify at the revocation hearing without waiving his Fifth Amendment rights.

Here, Mr. Watts violated probation in between sentencing and reporting to the workhouse.  Mr. Watts objected to the revocation hearing and requested a continuance; he did not request use immunity.  The state objected to the continuance and the court denied the defense motion, revoked Mr. Watts’ probation and sent him to prison.  On appeal, Mr. Watts made a due process argument, not a Fifth Amendment argument, that the district court abused its discretion by not offering him limited use immunity.  The criminal rule, 27.04, subd. 2(4)(c), only says that the court may postpone the revocation hearing when the violation report alleges a new crime, so the grant or denial of a postponement request is a discretionary ruling unlikely ever to be reversed on appeal.  The appellate courts have never held that the district court must unilaterally offer use immunity to a defendant so that he may testify at the revocation hearing.  See State v. Hamilton, 646 N.W.2d 915 (Minn.Ct.App., 2002), abrogated in part on other grounds, State v. Modtland, 695 N.W.2d 602 (Minn. 2005). 

Left undecided here is what should happened when a defendant does request use immunity.  Judge Cleary, concurring, says that if the district court chooses to go ahead with the revocation hearing, “best practice” should be to confer use immunity whether a defendant requests it or not.  Without that grant, Judge Cleary believes that the hearing should be postponed, although he acknowledges that the current rule does not require that.  Judge Cleary suggests that it’s time to change to rule to require that postponement, again when the revocation allegation is solely the commission of a new crime.

No Criminal Opinions, but the Court Chases the Grim Reaper

The court issued no criminal opinions today.  It did, however, grant review of a court of appeals "Order Opinion," State v. Burrell.  When you get to the link, scroll down to the bottom and click on "Opinion - Order Opinion".  

You should know that Mr. Burrell is dead; he died after he was convicted of aggravated forgery but before the court of appeals could rule on his appeal.  (Lest you're wondering, this appears to be Mr. Burrell's one and only felony conviction.)  Upon learning of Mr. Burrell's passing, his appellate attorney moved to undo the whole thing, filing a "motion for abatement ab initio."  If granted, it would nullify the whole thing, including the conviction.  

The court of appeals has taken umbrage with this notion, suggesting that it tramples on "victim's rights."  So, the court denied the abatement motion and dismissed the appeal, effectively leaving the conviction intact.  Now the supreme court has taken up the issue, reaching down into poor Mr. Burrell's very coffin to decide what to do with that conviction.  

Prosecutorial Errors Result in Dismissal of Indictment.

State v. Troy Martin, Minn.Ct.App., 12/24/2012.  This is a challenge to a grand jury indictment of Troy Martin for the homicide of his sister.  The court of appeals concludes that the prosecutor’s errors in presenting the case to the grand jury and the grand jury’s exposure to inadmissible evidence tainted the indictment and undermined the independence of the grand jury.  The court of appeals orders the dismissal of the indictment.

Police found Leisa Martin’s body back in 1998.  The investigation focused on Todd Martin but the investigation went no where until January 2010 when Todd Martin more of less accused Troy Martin of killing Leisa.  The prosecutor convened a grand jury, which indicted both Martins.  According to the court of appeals there were numerous mistakes made along the road to indictment, which resulted in the order to dismiss the indictment.

Waiving a Knife While Demanding Money Suffices for Terroristic Threats

State v. Smith, Minn.Ct.App., 12/24/2012.  Mr. Smith and his buddy, Mr. Hicks, Jr., gave their cousins, D.W. and U.H. a ride back to D.W.’s apartment.  Mr. Smith began to argue with D.W. about money as they walked into D.W.’s apartment.  Inside, they continued to argue.  Mr. Hicks kicked D.W. in the leg, then waived a pocket knife in front of D.W. and demanded money.  D.W. called 911; Mr. Smith knocked the phone out of his hand but D.W. fetched the phone and resumed his 911 call.  Mr. Smith gave up and that point and left.  Among other charges, the state charged Mr. Smith with terroristic threats.

The “threat” in “terroristic threats” must be to commit a future crime of violence which would terrorize a victim.  State v. Murphy, 545 N.W.2d 909, 916 (Minn. 1996).  So, Mr. Smith said that his “threat” was to commit an immediate act of violence.  The appellate court disagreed; the statute covers both the act of waiving the knife at D.W. while demanding money as well as his future assault of D.W.  Mr. Smith also argued that his waiving of the knife was only “transitory anger,” which is not proscribed by the terroristic threats statute.  The court summarily dismisses this claim without any real analysis. 

The court did say that admitting evidence that Mr. Smith had a box cutter two days later when police arrested him was a mistake, but it was harmless error.

Friday Sidebar: Robert Crais

Mr. Crais is the author of the Elvis Cole/Joe Pike suspense novels.  Mr. Crais grew up in Louisiana, on the banks of the Mississippi River.  He’s also written scripts for the television shows, Hill Street Blues, Cagney & Lacey and Miama Vice.  His web page is here.  The First Rule was published in 2010, and is the thirteenth in the Cole/Pike series.  His web page lists them in order.

No Published Criminal Opinions, But a Very Bad Day For Dogs

There were no published criminal opinions issued today by the Minnesota Supreme Court.  It was a bad day for dogs, however.

Sawh v. City of Lino Lakes, Minn.S.Ct., 12/19/2012.  Mr. Sawh has a dog, Brody, or, at least he has a dog for a few more days anyway.  Brody first bit a neighbor.  This got Brody tagged as “potentially dangerous,” but it didn’t mean anything beyond the label.  Six months later, Brody again bit someone, twice.  This got Brody tagged as “dangerous” and also made him subject to removal from the city; Mr. Sawh appealed this designation to the city council.  The council held a hearing and put Brody on a pretty short leash – probation.  The very next day Brody violated probation by biting the furniture delivery guy.  That was it for the city which ordered that Brody be put down.

Mr. Sawh appealed this order as well to the city council.  The council again held a hearing, and upheld the destruction order.  Mr. Sawh sought review in the courts by writ of certiorari saying that the city had deprived him of a property interest without due process.  The court of appeals thought that the city should have given Mr. Sawh a hearing on the “potentially dangerous” designation.  Writing for the Court, however, Justice Stras disagreed.  This designation did not interfere in any way with Mr. Sawh’s possession and enjoinment of Brody and so there was no “process” due.  On the other hand, the “dangerous” designation and the probationary sentence imposed upon Brody did interfere with Mr. Sawh’s property interest in his dog and so there was some “process” due.

But not a lot.  The court employs the three factors from Matthews v. Eldridge, 424 U.S. 319 (1976).  The first factor is the private interest that will be affected by the official action.  Mr. Sawh’s property interest is not measured in sentimentality but in dollars:  Brody’s fair market value:

[W]hile animal owners have considerable sentimental attachment to their pets, Minnesota law treats an animal like any other item of tangible personal property. See Corn, 179 Minn. at 492, 229 N.W. at 870. Given that treatment, Sawh’s protected property interest at stake in this case is not nearly as substantial as the property interests that we have recognized in other contexts.

The second factor looks at the risk of an erroneous deprivation of a protected interest.  It turns out that it would be just about impossible for the city to err in deciding whether Brody lives or dies.  That’s because the council needed only to find that the animal control officer had previously declared Brody to be “potentially dangerous” and to have provided Mr. Sawh notice of that declaration.  The council did not have to decide whether that designation was correct.  The risk of erroneously putting Brody down doesn’t have to be faced.  If animal control made the “potentially dangerous” designation and gave Mr. Sawh written notice of it, then the subsequent designation of “dangerous” is an automatic. 

The third factor is the government’s interest, in this case, ensuring the health and safety of its citizens.  Brody hasn’t done too well in the community.  The court upholds the city’s order to put Brody down.

Instructing Jury That It Must Reach a Verdict Is Reversible Error, Entitling Appellant to New Trial

State v. Olsen, Minn.Ct.App., 12/17/2012.  “Get back in your room,” the judge howled, “And don’t come out until you’ve a verdict!”  A jury convicted Mr. Olsen of criminal sexual conduct in the first degree.  After deliberating a while, the jury sent out a note informing everyone that it had reached an “impasse” and asking how they should continue.  That’s when the judge let loose:

Members of the jury, I received your note from . . . your foreperson. “We have reached an impasse, how should we continue.” I have discussed that with counsel as well as Mr. Olsen. How should you continue? You should continue. I don’t believe you have deliberated long enough and I’m going to send you back to continue your deliberations reminding you of the instructions I gave you. And I’ll remind you once again you are the finders of fact. There are twelve of you and you are to make a decision on this. It’s what I have discussed with counsel, and this is being done with their approval as well but it’s ultimately my call. Back to the room. If you go into the noon hour give us a half hour, forty-five minutes to get you something to eat.

(Emphasis in original.) 

A court can neither inform a jury that a case must be decided, nor allow a jury to believe that a deadlock is not an available option.  State v. Jones, 556 N.W.2d 903 (Minn. 1996).  To do so is reversible error.  That’s what the judge did here so Mr. Olsen gets a new trial.