No Published Criminal Opinions Today; Court Does Say that Implied Consent Litigants Are Not Entitled to Court Appointed Attorneys.

Thole v. Commissioner of Public Safety, Minn.Ct.App., 4/29/13.  In an opinion that one supposes pleases at least the legislature, the private defense bar, and  perhaps – although perhaps not - public defender bean counters, the court of appeals rejects Mr. Thole’s arguments that for a variety of reasons he is entitled to court appointed counsel to litigate his implied consent challenge.  The court does leave the door ever so slightly ajar by pointing out that the supreme court could bestow this right upon Mr. Thole under its supervisory powers, but not them.

Friday Side Bar: Tribute to George Jones

Post Conviction Petition Asserting “Interests of Justice” Exception to Limitations Period Is Time Barred

Francis v. State of Minnesota, Minn.S.Ct., 4/24/2013.  A jury convicted Mr. Francis of various murder convictions.  In this post conviction petition – which is either his third one or his fifth one depending on who’s doing the counting - Mr. Francis claimed that since his conviction he had acquired evidence he hadn’t known about before trial about the way in which the grand jury was assembled, which he claimed violated his rights to due process and equal protection.  This new information thus satisfied the “interests of justice” exception to the two year limitations period.

Justice Wright acknowledged that the precise way in which Hennepin County assembled a grand jury was not in the county’s jury administration plan.  However, these details were contained in an Opinion issued some ten years before Mr. Francis’s trial in Hennepin County v. Perry, 561 N.W.2d 889 (Minn. 1997). 

Mr. Francis made the mistake of conceding that he had actually read the Perry opinion when he was first researching this grand jury issue back in 2005 or 2006.  One of the factors that a court can consider under the “interests of justice” exception is the degree of fault attributable  to the person asserting the interest in not getting the petition filed within the time allowed.  By his own admission Mr. Francis had known about the very details that he said he’d had great difficulty trying to get from the court administrator’s office early enough to have filed his petition within the time allowed.  It was his fault for not getting that done and so there was no abuse of discretion by the post conviction court’s determination that the petition was too late.

Affidavits & Testimony Presented at Post Conviction Hearing Do Not Support Request For New Trial

Tscheu v. State, Minn.S.Ct., 4/24/2013.  A jury convicted Mr. Tscheu of first degree murder back in 2008.  The Supreme Court affirmed his conviction, read here.  His defense at trial was that he and the victim had had consensual sex the night before her death and that a third party later murdered her.  Mr. Tscheu tried to set up M.H. as this third party.  In this post conviction petition, Mr. Tscheu offered testimony from A.C. and from the victim’s stepson as newly discovered evidence to support his “M.H. killed her” theory.  The post conviction court held an evidentiary hearing after which the court denied the petition.  The court concluded that A.C.’s affidavits and testimony – the stepson did not testify - were in conflict with earlier statements and testimony, not credible, and thus not likely to produce a result more favorable to Mr. Tscheu.

Justice G. Barry Anderson, writing for a full complement of justices, agrees with the post conviction court and affirms the denial of the petition.

Destruction of Blood Exemplar After Defense Demand to Preserve it Does Not, Alone, Support Suppression of Evidence of Testing of That Exemplar

State v. Hawkinson, Minn.S.Ct., 4/24/2013.  This case comes up from the court of appeals, read here, and asks whether the trial court can properly exclude alcohol content test results for the sole reason that the exemplar is destroyed after the defense files a demand to preserve it.  The short answer is, no.

The court of appeals had concluded that the destruction of the exemplar following a defense demand to preserve it was a due process violation that did not require a showing of bad faith.  Justice Paul Anderson, writing for a six member court, disagrees.  If the destroyed exemplar has apparent and material exculpatory value then its destruction violates due process, regardless of bad faith.  That’s a Brady v. Maryland, 373 U.S. 83 (1963) violation.  If not, then Mr. Hawkinson still has to establish, notwithstanding the preservation demand,  that the “potentially useful evidence” was destroyed in bad faith.  The court concludes that the exemplar does not qualify as Brady” material.  As to bad faith, the court concludes that the state had not destroyed the exemplar so as to hide favorable evidence; and that because the destruction had occurred in accordance with the applicable retention policy and schedule, there was no bad faith.  That the destruction occurred following Mr. Hawkinson’s demand to preserve it does not, by itself, relieve Mr. Hawkinson of showing bad faith.  Rather, that demand is but an additional factor to consider in the bad faith determination. 

When the court looked at the preservation demand, it turned out that the destruction was all Mr. Hawkinson’s fault.  His demand was too vague: he requested that the “blood tests” be preserved; the court could not decide whether this was a request for just the test or also the exemplar.  His demand did not specify the date of the exemplar (was there more than one?).  Next, the demand was “in a long string of boilerplate requests, many of which were inapplicable to this case.”  Next, Mr. Hawkinson’s attorney took no further action to preserve the exemplar after being notified that it was to be destroyed twelve months hence.  Last, counsel conceded that he had no intention to use or retest the exemplar.

Mr. Hawkinson also made a Crawford confrontation claim, which the court rather summarily dismisses.  After, the right of confrontation is the ability to cross examine witnesses, not go over to the evidence room and rummage through exemplars and other physical items. 

His last challenge invoked the discovery rules of criminal procedure.  While it’s correct that in gross misdemeanor and felony cases the state must allow defendants to conduct their own “reasonable” testing of physical evidence, Minn.R.Crim.R. 9.01, subd. 1(4)(b), that obligation does not extend to misdemeanors.  Rule 9.04 only obligates the state to allow a defendant who is charged with a misdemeanor to inspect the police investigatory reports and Brady material.  Any other disclosure has to be by motion to the court.   The charges against Mr. Hawkinson were misdemeanors, and he did not seek a court order for additional discovery.  (Apparently, his demand of the state did not count.)  In essence, the court does not say what, if any, remedy under the rules may be available in gross misdemeanor and felony cases.  It seems unlikely, however, that the court would apply the rules in isolation from the due process analysis the court utilizes here.

Medical Examiner Properly Allowed to Testify that Manner of Death was “Homicide”.

State v. Xiong, Minn.S.Ct., 4/24/2013.  A jury convicted Mr. Xiong of first degree premeditated murder for the shooting death of Youa Lor.  Mr. Xiong told police that he had pointed a gun near Mr. Lor’s abdomen and when he “looked up, it went off.”  He also told the officers that he hadn’t wanted to point the gun and hadn’t wanted to shoot Mr. Lor. 

Without objection, the medical examiner was allowed to state that the manner of death was homicide.  A firearms expert testified, again without objection, about the workings of the weapon and about some testing he performed.  He said that he tried to get the weapon to discharge without pulling the trigger but he couldn’t get it to do that.  And, he testified that the gun’s “trigger pull” was lower than the standard trigger pull of this kind of gun.  He concluded that the gun could only have been fired by pulling the trigger.

First, Mr. Xiong’s objection about the medical examiner’s statement that the manner of death was homicide.  Mr. Xiong argued that the medical examiner’s statement inferred Mr. Xiong’s intent but the doctor lacked sufficient information to conclude that.  Justice Wright parries this argument with some dictionary – with some help from Justice Stras?  - gymnastics that are too clever by half.

“Homicide” – the killing of one person by another –  she says, does include “murder” but “murder” can be intentional or unintentional; and, she says, can be justified or unjustified.  Fatal to Mr. Xiong’s argument, no one asked the good doctor what he meant by the word, “homicide” so its use “did not imply that a crime had [even] occurred.  That being the case, then there was no inference whatsoever about Mr. Xiong’s intent.  So, under this construct, all that the medical examiner said was that one person killed another.  The court spays the word of its popular meaning – did no one on the court ever watch “Homicide – Life on the Streets;” were Pembleton and Bayliss really just running around investigating car accident fatalities? – and leaves it this, totally lame eunuch of a word.  It’s a word, however that somehow remains “helpful” to the jury in deciding whether the “killing of one person by another” in this case had been intentional and premeditated.  The doctor’s statement was thus not error, plain or otherwise.

On the firearms expert the court says that his conclusions were based on the tests he conducted and the analysis he performed.  It was helpful to the jury to address Mr. Xiong’s misfire defense.  It properly addressed two factual issues:  whether Mr. Xiong had discharged the gun accidently’ and whether the gun could have fired because of jarring or a blow to the gun.  Again, there was no error in admitting this testimony, plain or otherwise.

Criminal Sexual Conduct Statute Unconstitutional As Applied to Fourteen Year Old Charged With Sexual Misconduct With Thirteen Year Old Cousin.

In the Matter of the Welfare of:  B.A.H., Minn.Ct.App., 4/22/2013.  Okay, two cousins, well under sixteen, are having a sleepover.  Staying up late, drinking Dad’s pilfered liquor, doing a little mutual sexual “experimentation.”  Here’s what Judge Toussaint said took place between B.A.H. and X.X.:

While lying in bed together, B.A.H. removed X.X.’s jeans and put his mouth on X.X.’s penis and sucked on it. B.A.H.then asked X.X. to suck on B.A.H.’s penis, but X.X. declined. At that point, B.A.H.removed his own clothing, straddled X.X., and placed X.X.’s penis into B.A.H.’s anus. B.A.H. began masturbating and moving up and down on X.X.’s penis. B.A.H.asked X.X. to touch him, but X.X . declined.

When the Corner Stone types talked to X.X. he said that it wasn’t like  B.A.H. had forced him into  playing around; rather, B.A.H. had just convinced him to do it.

The state charged B.A.H. with violating Minn.Stat. 609.342, subd. 1(g), which required the state to prove that B.A.H. had a “significant relationship” with X.X.; that B.A.H. engaged in sexual penetration with X.X. who was under 16 years of age.  Hmm.  Seems like that could go either way. 

And that’s exactly what the court of appeals concluded.  In its view, the state could just as likely have charged X.X. as B.A.H..  Or both.  Since the state chose only to charge B.A.H. the court said that it had engaged in arbitrary charging, in violation of B.A.H.’s right to equal protection.  The court winks at the near unfettered prosecutorial discretion to determine who and what to charge to reach what seems like the correct outcome:

Minn. Stat. § 609.342, subd. 1(g),is unconstitutionally vague and encourages arbitrary and discriminatory enforcement when applied to situations where both parties are under the age of 16 and each person has a significant relationship to the other because, in such a case, the statute does not provide any basis for establishing  which party is the actor.

Post Conviction Petition Makes Insufficient Showing of “Newly Discovered Evidence”; and Does Not Establish Statutory Basis For New DNA testing

Fort v. State, Minn.S.Ct., 4/17/2013.  The court continues its unrelenting dismantling of the post conviction statute, this from a state that was one of the first states to enact a post conviction statute back when the U.S. Supreme Court seemed to say that one was constitutionally required. Two thirds of the courts opinions this year have been reviews of post conviction petitions.

The bare facts:  On December 15, 1990, someone broke into the home of eleven year old Marcus Potts, and stabbed him forty-four times, causing his death, read more here.  A jury found Mr. Fort guilty of first degree premeditated murder.

Mr. Fort filed this post conviction petition alleging newly discovered eyewitness testimony which he claimed buttressed his alternative perpetrator theory; and requesting another round of DNA testing on an exemplar found at the crime scene.  The post conviction court summarily denied the petition; that court said that Mr. Fort had not meet the requirements for receiving an evidentiary hearing on a claim of newly discovered evidence.

Now, a brief detour:  while the jury was deliberating someone called Mr. Fort’s attorney and said that P.R. had confessed to the murder.  The trial court heard testimony on this confession after which it denied Mr. Fort’s request for a new trial.  This go round, Mr. Fort produced an affidavit from A.Z.  Z. said that he had been with both Mr. Fort and P.R. on the evening of the murder, that he had last seen Mr. Fort at 10:15 p.m. and had last seen P.R. at 11:25 p.m.  In addition. Z said that the day after the murder P.R. told Z about the murder and that P.R. “seemed shook up” about it.  The post conviction court said that Z’s affidavit, even if true, did not contain direct evidence of Mr. Fort’s guilt or innocence.

The court uses a four part test to consider claims of newly discovered evidence.  Rainer v. State, 566 N.W2d 692 (Minn. 1997).  The very first part asks whether Mr. Fort or his lawyer knew of this evidence.  Oops.  Z’s affidavit says that he was with both P.R. and Fort so Justice Paul Anderson concludes that Mr. Fort had to have known of this evidence for lo these many years, back to the night of the offense.  This alone would have supported denial of the petition but the Justice goes on to conclude that he hadn’t met any of the four parts of the test. 

Mr. Fort also sought to have an exemplar taken from a smear (of some sort) found at the murder scene tested for DNA.  There had been testing of the exemplar already.  Testing a year after the murder, in 1991, showed that the exemplar contained blood but no other identification could be made.  In 2007 there was an attempt to retest this exemplar with new DNA technology but the sample “was found to be either nonexistent or too small to test.”  The practicalities aside, in his petition Mr. Fort did not claim that thee was any newer DNA technology available that would make testing either possible or practicable.  The post conviction statute that authorizes DNA testing requires a showing that the exemplar was not subject to testing because, in this case, the technology for testing wasn’t available.  Minn.Stat. 590.01, subd. 1a.  Since Mr. Fort didn’t even allege such new technology he is not entitled to the testing.

Unauthorized Consecutive Sentence Results in Remand With Directions to Impose Concurrent Sentence

State v. Amundson, Minn.Ct.App., 4/15/2013.  This is a sentencing appeal.  Mr. Amundson at last gets the relief he’s been fighting for, notwithstanding a lot of procedural quagmires along the way.  The title up above, though, doesn’t begin to tell the story.

In September 2004 Anoka County got around to charging Mr. Amundson with what the court only described as “felony aiding an offender” that had happened three years earlier.  When Mr. Amundson was “aiding an offender” he was also on probation in Dakota County for a second degree burglary.  Right before he was “aiding an offender” in Anoka County Mr. Amundson had dropped into Sherburne County, committed a second degree burglary there and got an 86 month prison sentence for his trouble.  Back in Anoka – now it’s March 2005, the Anoka District Court gives Mr. Amundson 180 months for the “aiding an offender,” to be served consecutively to the Sherburne 86 month sentence.

Five years later, Mr. Amundson filed a post conviction petition; he argued that the consecutive Anoka180 was not authorized by law.  His pitch was that this consecutive sentence was a departure that the Guidelines did not authorize.  The post conviction court said that the petition was untimely under the limitations period in the post conviction statute; and that the consecutive sentence was permissive anyway and not a departure.  Mr. Amundson appealed that ruling and the court of appeals affirmed, but only on the untimeliness ruling.

In 2012, Mr. Amundson filed a motion for correction of sentence under Rule 27.03, subd. 9.  His pitch this time was that the consecutive sentence was an upward departure that was supported only by the agreement of the parties.  The district court treated the motion both as a second or successive post conviction petition that raised the same issue as the first petition; and said that it was (still) untimely; the court summarily dismissed it.  Mr. Amundson appealed again and that’s when his luck started to change.

During the pendency of this appeal, the court of appeals held in Vazquez v. State, 822 N.W. 2d 313 (Minn.Ct.App., 2012) that the two year limitations period in the post conviction statute does not apply to a Rule 27.03 motion that is based on a challenge to the accuracy of the criminal history score.

The court now extends the rationale of Vazquez to Mr. Amundson’s Rule 27.03 motion, saying that a defendant cannot waive or forfeit the right to challenge an unauthorized sentence merely because it was part of a plea agreement.  After all, State v. Misquadace, 644 N.W.2d 65 (Minn. 2002) holds that plea agreements cannot form the sole basis of a sentencing departure; if that’s all you’ve got then the sentence is not an authorized one.  Because Mr. Amundson’s motion is properly made under Rule 27.03, the limitations provision of the post conviction statute did not apply.  Also, even if the Rule 27.03 motion were treated as a post conviction petition it is not subject to summary dismissal as a successive petition raising the same issue as the first petition because in the first appeal the court never got around to ruling on the lawfulness of the consecutive sentence.

So, was the Anoka 180  consecutive sentence to the Sherburne 86 a departure?  Yes.  When Mr. Amundson committed the “aiding an offender” crime he had not been charged with the Sherburne 86 crime.  So, when Anoka sentenced him it was for “multiple current offenses” which are presumptively concurrent. Alternatively, the Sherburne 86 sentence was a “prior felony sentence which has not expired or been discharged – again making the Anoka 180 presumptively concurrent.  Neither crime was a “crime against a person” and thus could not be sentenced permissively consecutively .

As it happened the state conceded that Mr. Amundson’s sentence was a departure, but argued that because the date of offense preceded Misquadace a plea agreement could support the sentencing departure under State v. Givens, 544 N.W.2d 774 (Minn. 1996).  The court of appeals isn’t buying that argument, cute though it may be.  The Misquadace court did limit Misquadace to “pending and future cases.” Now,“pending” means that the time for appeal has expired; but when Misquadace came down the “aiding an offender” crime was not “pending;” hell, he hadn’t even been charged yet.  That leaves “future cases” and because Misquadace had not been decided when Mr. Amundson was charged with the “aiding an offender” crime, the Anoka 180 case is a “future” case to which Misquadace applies.  Not having given any valid reason for a sentencing departure at the time, the district court doesn’t get a redo.  State v. Geller, 665 N.W.2d 514 (Minn. 2003). 

The court remands for resentencing with instructions to impose the “aiding an offender” sentence concurrent with the Sherburne 86.

A Defendant May Be Sentenced on Both Offenses of Ineligible in Possession of Gun and Possession of Gun With a Removed Serial Number

State v. Watson, Minn.Ct.App., 4/15/13.  Officers were called to a party on multiple reports that two guys had guns.  One of the guys was Mr. Watson, whom the officers saw fighting with another male.  The officers broke up the fight.  They also found a gun in Mr. Watson’s waistband.    There was a difference of opinion among the various witnesses whether Mr. Watson actually had the gun or whether the guy with whom he was fighting “scooted” it under Mr. Watson just as the cops scooped him up off the floor.  Good trial fodder but not really pertinent to this appeal.

Oh, did I mention that the gun’s serial number had been removed?  It had.  And that Mr. Watson was not allowed to possess guns?  He was not.  This resulted in charges that Mr.. Watson was ineligible to possess a gun; and that he either had received or possessed a gun with the serial number removed.  The jury convicted him on both offenses, rejecting both his “he scooted it” and his necessity defenses.

The trial court sentenced Mr. Watson on both offenses.  He objected, saying that because the offenses rose out of the same behavioral incident the court could only sentence him on one of them.  Minn.Stat. 609.035, subd. 1.  The state conceded as much, and Mr. Watson pointed to three unpublished opinions that said just this.  The court thumbs its nose at them both.  Unpublished opinions, the court reminds us, are not precedential, in part, they candidly admit, because such opinions “rarely contain a full recitation of the facts.”  As to the state’s concession, the same need not generally be accepted when it presents a question of law; and not in this instance, the court certainly implies, when based upon “counsel’s oversights, lack of research, failure to specify issues or to cite relevant authorities.”  [Citations omitted.]  Whew.

Minn.Stat. 609.035, subd. 1 says:

Except as provided in subdivisions 2, 3, 4, and 5, . . . if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only  one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.

Subdivision 3 says:

Notwithstanding section 609.04, a prosecution for or a conviction of a violation of section … 624.713, subdivision 1, clause (2), [ineligible person in possession of gun] is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.

The court says that this is about as clear as it gets and that “any other crime” means just that, and certainly means the serial number charge.

The trial court gave the jury a necessity instruction.  During closing argument the prosecutor told the jury that because Mr. Watson started the fight he was not entitled to a necessity defense.  Mr. Watson said that this misstated the law of necessity.  The court of appeals disagrees, saying that the defense of necessity is available in “emergency situations where the peril is instant, overwhelming, and leaves no authorities but the conduct in question.”  The necessity must have arisen without negligence or fault on the part of the defendant.  

No Supreme Court Published Criminal Opinons Today

April 10, 2013.  No Criminal Opinions today.

Reasonable Inferences From Search Warrant Application Supported Probable Cause to Search Defendant’s Residence for Gun

State v. Yarbrough, Minn.Ct.App., 4/8/2013.  The state took a pretrial appeal of an order granting Mr. Yarbrough’s motion to suppress evidence seized during the execution of a search warrant at Mr. Yarbrough’s residence.  The warrant sought both drugs and a gun.  The search warrant affidavit alleged that three days earlier Mr. Yarbrough had been involved “in a terroristic threats situation” during which he accused the victim of the threats of stealing “a large amount” of crack cocaine from him, during which he punched the victim, during which he “brandished” a .22 caliber handgun, and after which he then fled in a maroon Chevy Caprice.  The affidavit went on to say that the Caprice registered to the address sought to be searched, that police data bases established that Mr. Yarbrough lived at that address, that Mr. Yarbrough had been arrested three months earlier for possession of narcotics, and that a snitch “knew "[Mr. Yarbrough] to deal in crack cocaine.”

The trial court suppressed the evidence seized for the reason that there was no nexus between the place to be searched and the alleged criminal activity.  As a consequence, the warrant was not supported by probable cause.  In a 2-1 opinion, the court of appeals reverses the trial court.  The court says that it was a close call whether the affidavit supported the search for drugs, but it was sufficient to support the search for a gun.  It would be reasonable to infer that Mr. Yarbrough kep his piece at his place.

Judge Stauber dissented.  He thought that it required more than an inference to support a nexus between the alleged crimes and the place to be searched.  The affidavit was deficient because it did not allege anything that linked the gun to the address associated with the Caprice; and it did not allege either that someone saw a gun at that address or that Mr. Yarbrough went to that address immediately after the alleged terroristic threats incidence took place.  In sum:

If all that is needed to search a location is a reasonable inference, we defeat the probable cause requirement of the search warrant.  Law enforcement would simply need to establish that an offender possessed a particular item, identify his or her residence, and conclude that it is “common sense and reasonable” to infer that the offender would keep that item at his or her residence.

 

Predatory Offender Registration Not Required Upon Conviction of Use of Electronics to Engage in Communication With a Child Describing Sexual Conduct

State v. Ulrich, Minn.Ct.App., 4/8/2013.  Mr. Ulrich pled guilty to use of electronics to engage “in communication with a child … describing sexual conduct” under Minn.Stat. 6093.52, subd. 2a(2).  That’s the sum total of the “facts” given by the court of appeals.  At sentencing, the trial court ordered that Mr. Ulrich register under the predatory offender statute, over his objection that the registration statute did not apply to this offense.

The court of appeals agrees with him.  The registration statute requires registration for someone charged with and convicted of “soliciting a minor to engage in sexual conduct in violation of section 609.352.  There’s nothing in the language of 609.352 about “soliciting.”  So, the registration statute does not apply.

Prior Test Refusal Enhances Current DWI to Felony and Can Count in Criminal History Score

State v. Kjeseth, Minn.Ct.App., 4/8/2013.  A jury convicted Mr. Kjeseth of felony DWI, impaired driving, first degree DWI, test refusal, and fleeing a police officer (which no one cares about now).  The DWI counts are felony counts because some years earlier Mr. Kjeseth pled guilty to a felony DWI, test refusal.  More specifically, these counts are felonies when a defendant who violates Minn.Stat. 169A.20 “has previously been convicted of a felony “under this section.”  Mr. Kjeseth maintained that only a prior felony impaired driving offense – not a prior test refusal – can support a conviction under the first degree DWI statute.

The court of appeals rejects this claim.  The court concludes that there is nothing ambiguous about the language of the statute, which leaves its “plain meaning” in control.  169.24 “expressly provides” for enhancement of any felony violation of 169.20.  Just because the statutes – both of them – are headed “driving while impaired” test refusal is not excluded from the enhancement predicates.  The court also observes that the model criminal instruction, CRIMJIG 29.22, which is also limited to “driving while impaired” is incomplete by its omission of test refusal .

When it came time for sentencing, the district court included Mr. Kjeseth’s previous felony test refusal in his criminal history point count.  The Guidelines require this:

If the current offense is a felony DWI offense and the offender has a prior felony DWI offense, the prior felony DWI shall be used in computing the criminal history score, but the prior misdemeanor and gross misdemeanor offenses used to enhance the prior felony DWI cannot be used in the offender’s criminal history.

And State v. Zeimet, 696 N.W.2d 791 (Minn. 2005) is, according to both the court of appeals and the Guidelines Commission, limited to subsection (1) of 169A.24  – first of three or more qualified prior impaired driving incidents – and to prior misdemeanors.  Neither the court nor the Guidelines Commission seem to think that the language of Zeimet that prior predicate convictions must first be allocated for the purpose of enhancement of the current offense “and the same predicate convictions cannot be used a second time in the determination of the offender’s criminal history score” has any bearing. 

Noise Ordinance is Constitutional

State v. McElroy, Minn.Ct.App., 4/8/2013.  Mr. McElroy drives some nice wheels:  a 1984 Monte Carlo cream-soda pop colored low rider with brown anodized rims.  And a nice sound system that you could hear if not a mile away then at least fifty feet.  At 4:00 in the afternoon an officer was directing traffic when Mr. McElroy rolled by; the cop asked Mr. McElroy to turn down the volume, but He kept rolling.  He eventually turned down the volume but not before the cop cited him for violating a Minneapolis noise ordinance.  Mr. McElroy claimed that the ordinance was unconstitutionally vague and overbroad, that the state failed to prove the element of amplification, and that the judge should not have told the jury that it had to reach a verdict.  The court of appeals rejects each of these claims.

The ordinance prohibits blasting your car stereo so loudly that “any person from a distance of fifty (50) feet or more from the vehicle” can hear it.  The court of appeals concludes that this ordinance is neither vague nor overbroad.  It applies to all music and entertainment amplified from a vehicle and is thus content neutral.  And, the state has a legitimate interest in controlling the noise level on streets. 

The court also rejected Mr. McElroy’s evidence sufficiency claim.  It also rejected the jury instruction error under a plain error standard of review.

Fines First, Then Restitution, Unless the Court Orders Otherwise

State v. Knutson, Minn.Ct.App., 4/8/2013.  Ms. Knutson crashed her vehicle into another one, thereby injuring the other driver to the tune of ten plus grand in medical bills.  She was driving drunk and eventually she pled guilty to various counts of negligent criminal vehicular injury.  At sentencing, the district court ordered Ms. Knutson to pay fines and fees of roughly eleven hundred dollars,and kept open the amount of restitution.  The same day as her sentencing, Ms. Knutson signed an agreement with the court administrator to pay these fines and fees according to an installment plan.  She actually paid in a bit more than she owed  in fines and fees.

All of which the court administrator disbursed to the other driver and medical insurer.  Adding insult to injury the court administrator then informed Ms. Knutson that, oh by the way, you still owe the eleven hundred some dollars in fines and fees.  (As it happened, because Ms. Knutson had settled the civil claims arising out of the crash she actually didn’t owe any restitution.  State v. Arends, 786 N.W.2d 885 (Minn.Ct.App., 2010).)  Ms. Knutson complained about this, saying that she’d already paid these fines and fees and that the court administrator could not just send that money off somewhere else.  She prevails on this claim, on the basis of this sentence from the restitution statute, Minn.Stat. 611A.04, subd. 4:

When the court orders both the payment of restitution and the payment of a fine and the defendant does not pay the entire amount of court-ordered restitution and the fine at the same time, the court may order that all restitution shall be paid before the fine is paid.

The court of appeals says that Ms. Knutson wins because the district court had not ordered that restitution be paid before any fines and fees.  By implication, this sentence puts filling the court’s coffers ahead of any victim.  (Whether this sentence would permit the trial court to “split the pot” or in some other way divvy up the payments between the court and victims is left to another day.)  Not having done so, the court administrator had no authority to apply Ms. Knutson’s payments to any restitution obligation. 

Austin Food Trucks

Supreme Court: No Criminal Opinions Released Today

4/3/13.  No opinions today.  The court did, however, grant review in these criminal cases:

State v. Gerber, Minn.Ct.App., 1/22/2013).  State v. Lindsey, Minn.Ct.App., 1/14/2013.  The court granted review in each case, but stayed proceedings, pending the outcome of State v. Dereje.  That's the case where the parties submitted the case on, shall we say, less than stipulated facts.  

State v. Hentges, Minn.Ct.App., 2/7/12(40-CR-09-786).  Best I can tell, this started out as a criminal non-support prosecution, felony level.  Back in 2009, no less.  Apparently, Mr. Hentges is attempting to appeal something to the court of appeals, but as he is doing so his exact whereabouts are something of a mystery.  There is an active warrant for his arrest.  The state is attempting to end the appeal, and the supreme court has agreed to step in and say what should happen next.

State v. Ali, Minn.Ct.App., 1/14/2013.  The court granted review, but stayed proceedings, pending the outcome of State v. Irby, the case where the judge wasn't living in the district.  

Juvenile Expungement Request Sent Back to District Court to Give Human Services Opportunity to be Heard

In the Matter of the Petition of H.A.L.,, Minn.Ct.App., 4/1/2013.  The juvenile court adjudicated Ms. H.A.L. for something to do with a burglary.  A year or so later, the court discharged her, whereupon H.A.L. filed a petition to expunge her record.  H.A.L. wanted to go into either nursing or physical therapy but she neglected to serve her papers on the one agency that could stop her plans cold:  the Department of Human Services.  The court heard the petition and ordered that DHS seal its records.

DHS cried foul, relying on this statutory provision:

Notwithstanding expungement by a court, the commissioner may consider information obtained from juvenile courts as part of a background study for any individual applying to work in a licensed program or from the Bureau of Criminal Apprehension], unless the commissioner received notice of the petition for expungement and the court order for expungement is directed specifically to the commissioner.

Minn.Stat. 245C.08, subd. 1(b).  The court of appeals concludes that this section trumps the more generalized statutory discretion of district courts to expunge juvenile adjudications “when it deems such action advisable.”  Minn.Stat. 260B.198, subd. 6.  The court sent the case back to let DHS have its say; after that, if the court wants to order DHS to seal its records it’s free to do just that.

No Published Criminal Opinions Today

March 27, 2013.  No published criminal opinions today.

The court did grant review in one case, an unpublished opinion, State v. Johnson, available here.  The issue there was the trial court's failure to instruct on an element of the offense, the value of the property obtained by Mr. Johnson's use of someone else's credit card.  The Supreme Court stayed review of Mr. Johnson's case pending the outcome of another case, State v. Watson, also having to do with a trial court's failure to instruct on an element of the offense.  Read about that case here, and here. 

Court Finds “Right to Frisk” From “Right to Stop” Where Stop Involved “Large Amounts of Narcotics”.

State v. Lemert, Minn.Ct.App., 3/25/2013.  Officers stopped a truck in which Mr. Lemert was a passenger.  The driver, T.A., was the actual target of the stop.  Officers had what the court consistently describes as “reasonable suspicion” that T.A. was involved in “large-scale drug activity,” and that T.A.’s truck  had been used the “day before”, (which morphed into “the day of” as the opinion went along),  the stop in a controlled buy of methamphetamine.  Unbeknownst to the officers who made the stop, other officers – including the officer who eventually is going to pat search Mr. Lemert - had information that Mr. Lemert had received methamphetamine from T.A.  After the stop, officers removed Mr. Lemert from the truck and then pat searched him; of course, they found drugs.  He moved to suppress those drugs.

At the time of the pat search there was no direct evidence that Mr. Lemert had been involved in the controlled buy from T.A.; officers had no “specific awareness” that Mr. Lemert possessed a weapon; and the officers did not see him make any unusual or “furtive” movements or gestures.  Rather, the officer conducted the pat search  based on officer safety considerations and because the department’s felony stop protocol said to pat search all persons who were removed from a vehicle involved in drug transactions.  The policy plays the odds, apparently in favor of the probability that anyone in the presence of suspected drug people either may possess weapons or behave in unpredictable and erratic behavior.

The trial court denied the suppression motion and the court of appeals affirms, resorting to the notion that “in certain circumstances, the right to frisk follows directly from the right to stop, such as when a stop involves suspected dealing in large amounts of narcotics.”  State v. Payne, 406 N.W.2d 511 (Minn. 1987).  This is not, so says the court, the “automatic companion” rule which would permit a pat down search on the sole basis that a companion of an arrestee is located in the immediate vicinity of the arrest.  State v. Eggersgluess, 483 N.W.2d 94 (Minn.Ct.App. 1992).  No, that concept has been rejected.  No, it takes a lawful stop on suspicion of dealing in “large amounts” of narcotics. 

Here, apparently, it was a quarter ounce of meth.

Payne (and thus this opinion) relied upon the 1987 edition of LaFave’s Fourth Amendment tome.  The text from this 1987 edition does not seem to have made the cut in the most recent edition.  Payne involved a delayed frisk of one of the suspects – Mr. Payne - in a burglary that had just occurred two blocks from the stop.  Here, Mr. Lamert wasn’t initially suspected of anything, at least by the officer who made the stop.  This analysis also doesn’t square with Ybarra v. Illinois, 444 U.S. 85, 94 (1979).  Recall that Mr. Ybarra was sitting in a bar – The Aurora Tap – when it just so happened that the cops were searching the place pursuant to a search warrant.  Mr. Ybarra got frisked just for being there, about which Justice Stewart said:

The “narrow scope” of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.

So, the court here may have been on surer footing to have relied more, if not primarily, on the “collective knowledge” doctrine, which gets an “oh, by the way” analysis in the opinion.  At least then the collective knowledge of Mr. Lamert’s receipt of drugs from T.A. gets the state closer to a particularized suspicion of criminal activity by Mr. Lamert.

Supreme Court Summaries of April Oral Arguments in Criminal Cases

Links are to previous posts.

Tuesday, April 2, 2013

Supreme Court Courtroom, State Capitol

State of Minnesota, Respondent vs. Christopher Dineaa Bahtuoh, Appellant – Case Nos. A10-1584, A12-1281:  A jury found appellant Christopher Bahtuoh guilty of several offenses, including first-degree drive-by shooting murder committed for the benefit of a gang.  Bahtuoh appealed his conviction, and the supreme court granted his request to stay his appeal in order to pursue postconviction relief.  Bahtuoh filed a petition for postconviction relief, which the district court denied. 

In a consolidated appeal involving Bahtuoh’s direct and postconviction appeals, the following issues are presented to the supreme court: (1)  whether Bahtuoh is entitled to a new trial because the district court erroneously instructed the jury on accomplice liability; (2) whether Bahtuoh received ineffective assistance of counsel; (3) whether the district court abused its discretion when it denied Bahtuoh’s motion for a mistrial; and (4) whether there was insufficient evidence to prove that Bahtuoh intended to aid the shooter in the commission of a crime.  (Hennepin County)

Wednesday, April 3, 2013

Supreme Court Courtroom, State Capitol

 Nonoral:       Otha Eric Townsend, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A12-1734:  In 1994, a jury found appellant Otha Townsend guilty of first-degree murder, and Townsend was sentenced to life in prison.  Townsend subsequently pleaded guilty to attempted first-degree murder and was sentenced to 72-months in prison, to be served consecutively to his life sentence.   The supreme court affirmed his convictions on direct appeal.  In May 2012, Townsend filed a motion challenging his sentence.  This motion was Townsend’s fourth request for postconviction relief.  The district court denied the motion. 

            On appeal to the supreme court, the following issues are presented:  (1)  whether the district court erroneously treated Townsend’s motion as a petition for postconviction relief; (2) whether Townsend’s claims are time barred under Minn. Stat. § 590.01, subd. 4 (2012); (3) whether Townsend’s claims are procedurally barred by State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976); and (4) whether Townsend’s jail credit should apply to his sentence for first-degree murder.  (Ramsey County)

Thursday, April 4, 2013

Supreme Court Courtroom, State Capitol

            Nonoral:       Rusttee Allan Torres, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A12-0570:  Appellant Rusttee Torres was convicted, following a jury trial, of first-degree murder. The supreme court affirmed his conviction on direct appeal.  In March 2011, Torres filed his second petition for postconviction relief, based, in part, on newly discovered evidence.  The district court held an evidentiary hearing and then denied Torres’ petition.

            On appeal to the supreme court, the issue presented is whether the district court abused its discretion when it concluded that Torres had failed to establish that he was entitled to a new trial based on newly discovered evidence.  (Rice County)

Monday, April 8, 2013

Courtroom 300, Minnesota Judicial Center

            State of Minnesota, Appellant/Cross-Respondent vs.George Cornelius Watkins, Respondent/Cross-Appellant – A11-1793:  Respondent George Watkins was convicted of violations of a domestic abuse no-contact order (DANCO).  In order to convict Watkins, the State was required to prove that he “knowingly violated” the DANCO.  The trial court’s final instructions to the jury omitted this element.  In addition to sentencing Watkins to an executed term of 44 months in prison, the trial court imposed a new 5-year DANCO.  The court of appeals reversed Watkins’s conviction.

            On appeal to the supreme court, the following issues are presented: (1) whether the trial court’s plain error failure to properly instruct the jury on the element of intent was prejudicial as a matter of law; and (2) whether the trial court exceeded its statutory authority when it imposed a DANCO as part of an executed sentence.  (Hennepin County)

State of Minnesota, Respondent vs. Juan Humberto Castillo-Alvarez, Appellant – Case Nos. A11-1379, A12-0081:  Gregory Erickson was kidnapped in Iowa and then driven to Minnesota where he was murdered.  In 2004, Iowa charged appellant Juan Castillo-Alvarez with the murder of Erickson.  Following a jury trial, Castillo-Alvarez was convicted of second-degree murder.  In 2009, the Iowa Court of Appeals reversed the conviction based on a violation of Iowa R. Crim. P. 2.33, which establishes a speedy trial rule.

In 2010, Minnesota charged Castillo-Alvarez with the murder of Erickson.  Castillo-Alvarez moved to dismiss the charge, claiming the double jeopardy protections of the Minnesota Constitution and Minn. Stat. § 609.045 (2012) barred prosecution.  He also moved to suppress his out-of-state, unrecorded statement to an FBI agent, claiming the statement was obtained in violation of State v. Scales, 518 N.W.2d 587 (Minn. 1994).  The district court denied both motions.  Following a jury trial, Castillo-Alvarez was convicted of second-degree murder.  The court of appeals affirmed the conviction.

On appeal to the supreme court, the following issues are presented: (1) whether the double jeopardy protections of the Minnesota Constitution and Minn. Stat. § 609.045 bar prosecution; and (2) whether Scalesapplies to out-of-state interrogations.  (Jackson County)    

Wednesday, April 10, 2013

Courtroom 300, Minnesota Judicial Center

            State of Minnesota, Respondent vs. Eddie Cortez Smith, Appellant – Case No. A11-1687:  Appellant Eddie Smith was driving a car at a speed of more than 50 miles per hour in a residential neighborhood when he hit another car in which 93-year-old Edith Schouveller was a passenger.  Smith had an alcohol concentration of .11 shortly after the accident. 

            Schouveller’s spinal cord was fractured during the accident.  She spent 13 days in the hospital and was then transferred to a nursing home and rehabilitation care center.  After two days at the nursing home, she was admitted to the hospital and diagnosed with pneumonia.  Several days later, doctors determined that Schouveller required intubation.  Schouveller, however, had executed a living will with a do-not-resuscitate order specifying that she not be intubated.  Doctors did not intubate Schouveller, and she died later that evening.

            After a jury trial, Smith was convicted, in part, of criminal vehicular homicide.  The court of appeals affirmed Smith’s conviction.

            On appeal to the supreme court, Smith raises the following issues in his brief:  (1)  whether the State failed to prove that Smith caused the death of Schouveller; (2) whether Schouveller’s do-not-resuscitate order was a superseding cause of Schouveller’s death; and (3) whether Smith is entitled to a new trial because the district court failed to instruct the jury on the effect of a finding that something was a superseding cause of Schouveller’s death.  (Ramsey County)

“Consider the Fork, A History of How We Cook and Eat,” Bee Wilson

No Ineffective Assistance of Trial Counsel

Andersen, Jr., v. State, Minn.S.Ct., 3/20/2013.  A jury convicted Mr. Andersen of first degree premeditated murder of Chad Swedberg.  Mr. Swedberg was apparently shot from some distance while at his maple syruping camp.  The supreme court affirmed his conviction, about which you can read here.  Mr. Andersen is now back on post conviction, complaining, among other things, that both his trial and appellate counsel did not provide effective assistance of counsel.  The post conviction court summarily denied the petition and the supreme court, Justice Dietzen writing for a 5-2 majority, affirms the post conviction court.  Here are the seven grounds for relief that Mr. Andersen presented:

(1)there was newly discovered evidence that was both material and exculpatory ; (2) recordings of phone calls he made while in jail were admitted at trial in violation of his constitutional right to counsel; (3) testimony by firearm and palm -print experts and an exhibit displaying several types of Winchester bullets were admitted at trial in violation of his Sixth Amendment right of confrontation ;(4) the State committed misconduct during closing argument; (5) the State withheld certain evidence until after trial; (6) his trial counsel was ineffective; and (7) his appellate counsel was ineffective.

The court rejected the newly discovered evidence claim, saying that it would not have made a difference to the outcome of the trial.  The court then rejected claims 2, 4 and 5 as Knafla barred, throwing in a footnote suggesting that the court may not consider the exceptions to Knafla to exist anymore now that the legislature has codified the holding of Knafla. without including those exceptions. 

Continuing its mischief, it tosses claim 3 by concluding that the forensic evidence was either not “testimonial” or its admission did not constitute reversible error.  One of the items of evidence was an exhibit that the firearms expert used.  He was testifying about bullets that were recovered from the victim, that they were characteristic of some of the bullets that a particular manufacturer uses. The exhibit in dispute was photo display of some of these bullets sent from the marketing department of this manufacturer.  The court said that the exhibit was not prepared for litigation but was an ad, and thus was not “testimonial.”  The other item of evidence was more ethereal.  The fingerprint examiner, who said that a print that he examined belonged to Mr. Andersen, Jr., said that he’d sent images of the print to a second examiner and that if the second examiner disagreed with the first examiner no report may be issued.  The logical inference was that the second examiner agreed with the first examiner’s conclusions.  The court dodges the confrontation question with its standard practice of assuming that the logical inference was “testimonial” but that its admission was harmless beyond a reasonable doubt.

That gets to the effectiveness of counsel.  Appellate counsel gets a complete pass because Mr. Andersen, Jr., never asked appellate counsel to do what he is now complaining about.  Mr. Andersen, Jr., said that trial counsel was ineffective because he wanted to testify but his attorney had neither prepared a direct examination nor provided him with copies of discovery materials with which he could have made a rational decision to testify.  The problem that the majority had with this claim is that Mr. Andersen, Jr., made a waiver of his right to testify during the trial and as far as the majority was concerned he would need now to present more than conclusory allegations to obtain a hearing.  Not only that, Justice Dietzen cannot for the life of him figure out why counsel would need to prepare a direct examination of his client until he decides – usually at the tail end of trial – whether to testify. 

And those discovery documents?  The court makes the remarkable statement that former Rule 9.03, Subd. 4 precluded defense counsel from putting those documents “in defendant’s custody.”  (The current rules more vaguely talk about discovery materials remaining “in the party’s custody.”  Rule 9.03, Subd. 4 (2013).  Here’s what the old rule said:

PURSUANT TO MINN. R. CRIM. P. 9.03, SUBD. 4, DISCOVERY MATERIALS SHALL REMAIN IN THE CUSTODY OF DEFENSE COUNSEL, shall not be placed in defendant’s custody, and shall be used by defense counsel only for the purpose of conducting that attorney’s side of the case.

Justices G. Barry Anderson and Page dissented.  They said that the question whether trial counsel was ineffective regarding Mr. Andersen’s decision to testify required an evidentiary hearing to complete the record.

No Published Court of Appeals Criminal Opinions Today

March 18, 2013.  So far, the court of appeals has issued six published criminal opinions this year.