Petitioner Not Entitled to Post Conviction Relief Based on Newly Discovered Evidence and Ineffective Assistance of Counsel

Pearson v. State, Minn.S.Ct., 3/22/2017.  In this his second petition for post conviction relief Mr. Pearson said that he had newly discovered evidence that entitled him to a new trial, and that both his trial and appellate counsel had provided ineffective assistance of counsel.  Read about the first, combined direct appeal and post conviction petition here.  The post conviction court summarily denied the petition, and Justice Chutich affirms.

The court made short shrift, applying well recognized law for considering newly considered evidence, in rejecting the new evidence claim.  Mr. Pearson based his trial ineffectiveness claim on the assertion that trial counsel had told him to reject a plea offer for second degree murder - the initial charges were first degree premeditated murder - because the state could not prove premeditation.  Both the trial court and Justice Chutich concluded that this claim was barred under Knaffla because Mr. Pearson knew about it back during the combined direct appeal/post conviction appeal and didn't raise it.  Moreover, he also could not satisfy either of the two Knaffla exceptions.  Once again, the court ducks the question whether these exceptions survive the 2005 amendments to the post conviction statute.

On These Facts, A Twenty-One Month Delay Between Charge and Arrest Did Not Violate Sixth Amendment Speedy Trial Right

State v. Osorio, Minn.S.Ct., 3/22/2017.  Mr. Osorio complained that a twenty-one month delay between the date that the state charged him with a crime and the date of his arrest violated his Sixth Amendment right to a speedy trial.  The trial court agreed and threw the case out. The court of appeals reversed the trial court and now Justice G. Barry Anderson affirms the court of appeals, over the dissents of Justices Hudson and Strass.  With two members of the court - Chutich and McKeig, not participating, it's a 3-2 opinion.

Justice G. Barry Anderson again awards the length of delay factor to Mr. Osorio.  The blame for the delay also goes to the State:

Thus, while Osorio may have had an obligation or responsibility to respond to the summons because it was a valid court order, he did not have a constitutional duty to bring himself to trial.

The State, on the other hand, does have a responsibility to diligently pursue and prosecute the defendant. See Doggett, 505 U.S. at 652-53. In this case, the State was clearly aware of Osorio’s whereabouts and could have easily followed up on his location by contacting law enforcement officials in California. The State’s complete failure to take any steps to execute the warrant against Osorio is the reason for the delay in this case. 

But, the Justice concludes (somehow) that the failure to take steps to get Mr. Osorio back to Minnesota wasn't intentional so it gets only a mild slap on this factor.

On the third factor, assertion of the speedy trial right, the court does reject the notion that there was a presumption that Mr. Osorio received the summons and complaint because the same were not returned. Instead, the court looks to the "totality of the circumstances" to conclude that he got those papers and then sat back to await further developments.  So, this factor goes against Mr. Osorio.

Finally, Mr. Osorio sort of loses the prejudice factor on the facts of the case.

Although the State “has not, and probably could not have, affirmatively proved that the delay left [the defendant’s] ability to defend himself unimpaired,” Doggett, 505 U.S. 658 n.4, Osorio’s acquiescence to the delay reduces the weight that we afford his claim of generalized prejudice. As a result, the prejudice factor does not provide significant support for Osorio’s claim. 

Mr. Osoria had alleged that some recordings had been destroyed but he was unable to show when that destruction occurred.  The record did not establish that they were lost after the State charged Mr. Osorio, so he could not really show prejudice as a result of that destruction.

Justices Hudson and Stras thought that the third and fourth factors weighed in Mr. Osorio's favor and that his Sixth Amendment speedy trial right was, indeed, violate.

Imposing a Conditional Release Period at the Time of Execution of Previously Stayed Sentence is Okay

Thong v. State, Minn.Ct.App., 3/20/2017.  Mr. Thong pled guilty to first degree driving while impaired.  The plea petition that he signed had the standard issue language that a felony driving while impaired offense required a period of conditional release following any executed prison sentence that was imposed.  The trial court stayed execution of a 42 month sentence and placed Mr. Thong on probation.  The sentencing order did not impose the conditional release period.

Fourteen months later Mr. Thong violated his probation so the trial court executed the forty-two month sentence.  The trial court initially did not impose the conditional release term but later the same say the court amended the warrant of commitment to include that term. Mr. Thong filed this post conviction petition saying that he should be allowed to withdraw his guilty plea or have his sentence amended to remove the conditional release term.  The  post conviction court denied both requests.

Minn.Stat. 169A.276, subd. 1(d) requires that a five year conditional release term be imposed "when the court commits a person [convicted of first degree DWI] to the custody of the commissioner of corrections."  It turns out that when a trial court stays execution of a sentence it's not really "committing" that person to the custody of the commissioner of corrections.  That "committing" only occurs when the sheriff  hauls the defendant off to jail to await transportation up to St. Cloud for classification. The appellate court does suggest that the better practice is to pronounce the conditional release period at the time of sentencing

A Felony Deemed To Be A Misdemeanor Cannot Be Expunged

State v. S.A.M., Minn.S.Ct., 3/15/2017.  Twelve years ago S.A.M. pled guilty to a second degree burglary.  He received a stay of imposition of sentence, which became a misdemeanor a mere three years later upon release from probation.  In 2015 S.A.M. applied for an expungement; he stated that  he'd obtained a bachelor's degree, purchased a home, stopped drinking, was raising his eight year old son and stopped hanging out with his co-defendants. 

S.A.M. made his application under the provision of the expungement statute that allows a person to request the same when the person:

was convicted of or received a stayed sentence for a petty misdemeanor or misdemeanor and has not been convicted of a new crime for at least two years since discharge of the sentence for the crime.

Everyone screamed bloody murder:  the county attorney, the city attorney (for some reason), the BCA, the police all objected.  Not on the merits of the application.  No, they all said, and the trial court agreed, that S.A.M. had not been convicted of a misdemeanor notwithstanding Minn.Stat. 609.13,  subd. 1(2).

Justice G. Barry Anderson agreed with the trial court and all those state agencies in a 4-3 opinion.  Justices Lillehaug, Chutich and McKeig dissented:

By shutting the door to expungement for people like S.A.M., the court reduces opportunities for rehabilitated offenders to become productive members of society. Read properly, the law does not require this harsh result. I hope that the Legislature will clarify the expungement statute to reopen this door. Clarification would further what the Legislature has declared to be the state’s official policy: “to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the resumption of the responsibilities of citizenship.” Minn. Stat. § 364.01 (2016).

The majority decided that the "was convicted" language referred only to the initial sentence and not the final outcome.  In coming to this conclusion the court continues to ascribe way too much faith in the ability of the legislature - comprised of part timers who haven't seen a pay raise in twentysome years - to draft (and enact) statutes on the same subject consistently.  Case in point is State v. Franklin, 861 N.W.2d 67 (Minn. 2015).  There the court was asked to determine whether a felony conviction that had been reduced to a misdemeanor counts in determining whether an offender “has five or more prior felony convictions” under the career offender statute.  Only because the legislature used the present tense – “has -  did the court say, no, it doesn’t count.  Presumably, had the legislature said “had previously been convicted of five or more felonies” then it would have counted.  It is the height of hypocrisy for a court that is constantly admitting to its own sloppy draftsmanship in past decisions to insist rigidly on legislative exactitude in its drafting practices. 

So, S.A.M. has to live with his misdemeanor being public.

Dismissal of Revocation Proceedings That Were Timely and Properly Initiated Because Hearing Occurred After Expiration of Probation is Erroneous

State v. Sagataw, Minn.Ct.App., 3/6/2017.  Mr. Sagataw was on probation for a term of one year for something, doesn't matter. Within that year the state commenced a revocation action based on new convictions.  Ms. Sagataw made her initial appearance a couple of weeks after the term of probation expired, and the actual hearing on the revocation didn't occur for another couple of months.  At that hearing the district court dismissed the revocation action, concluding that because Ms. Sagataw's probation term had not been extended the court had no jurisdiction.

The court of appeals rejects this conclusion.  On appeal Ms. Sagataw conceded that the trial court had retained jurisdiction; there's a statute for that.  Minn.Stat. 609.14, subd. 1(b).  Instead, she argued that the trial court had discretion to dismiss the proceedings and to discharge her from probation.  While the trial court had such discretion, in this case it exercised it for the wrong reason, the timing of the hearing.

Jailer's Insistence on Use of Specimen Cup For Independent DWI Test Did Not Prevent Independent Testing

Willits v. Commissioner of Public Safety, Minn.Ct.App., 3/6/2017. Not a criminal case but too amusing to pass up.  A state trooper stopped and then arrested Mr. Willits for driving while impaired. At the station he first spoke with an attorney and then agreed to take a breath test.  Mr. Willits also decided that he wanted to take an independent test, so he made some calls to arrange it, including one to his spouse with directions to bring a Tupperware container to the jail.  His spouse showed up at the jail where jail staff escorted her back to the booking area; she had th Tupperware container for the purpose.

But, the jailor also provided Mr. Willits with a "medical-grade sterile specimen cup for Willits to use to collect his urine."  Mr. Willits filled the specimen cup even though his "container of choice" was Tupperware; must be the lids.

Mr. Willits lost his implied consent hearing where he claimed that the jailors had impeded, if not denied him his right to an additional test.  He relied upon an unpublished court of appeals opinion which had reached just that result because the jailor actually did deny some fellow - the court of appeals does not even identify the name of this unpublished opinion - a container of his choice.  The trial court had found that Mr. Willits had access to both containers when he peed into the specimen cup, and Mr. Willits could offer no evidence that there was anything wrong with the specimen cup.

Supreme Court Overturns Court of Appeals Decision That "Grooming" Statute is Facially Unconstitutional

State v. Muccio, Minn.S.Ct., 3/8/2017.  Just a couple of weeks ago the court was unable to say whether an adult who has sex with a child has engaged in the “sexual abuse of a minor” under the immigration statutes.  This reluctance seemed to be both to protect defense attorneys from malpractice claims, and to prevent the defendant, who is not a citizen, from being able to take back his guilty plea and perhaps avoid deportation.

This week, the court has no difficulty whatsoever in determining that a much more opaque and complex statute did not violate free speech protections of the First Amendment. In doing so, Chief Justice Gildea reverses the court of appeals which had said that the "grooming" statute was facially unconstitutional.

Ms. Muccio sent a close-up of a female's genitals, a close-up of a female's buttocks covered by a thong, and a female naked from the waist to the neck to a fifteen year old.  Ms. Muccio and the fifteen year old also had sexually explicit conversations and exchanged sexually explicit photographs.  The state charged Ms. Muccio with communication with a minor describing sexual conduct in violation of Minn.Stat. 609.352, subd. 2a(2).  She moved to declare this statute unconstitutional and the trial court granted that motion.  The state brought this appeal.

Here's what the statute says:

A person 18 years of age or older who uses the Internet, a computer, computer program, computer network, computer system, an electronic communications system, or a telecommunications, wire, or radio communications system, or other electronic device capable of electronic data storage or transmission to commit any of the following acts, with the intent to arouse the sexual desire of any person, is guilty of a felony . . . : engaging in communication with a child or someone the person reasonably believes is a child, relating to or describing sexual conduct. 

The court does conclude that this statute is overbroad because it does regulate some protected speech.  So, the justices reign in just who and what the statute covers.  First, the adult's "engaging" behavior must be directed at a child:

we conclude that the statute prohibits an adult from participating in the electronic transmission of information relating to or describing sexual conduct if the intended target or object of the transmission is a child.

Non-targeted mass internet communications do not come within the ambit of the statute.  The statute's intent requirement, "with intent to arouse the sexual desire of any person," means just that:  any person and not just the adult or child who are engaging in the communication.  The court more or less just jumps to the conclusion that mass internet communications won't meet that intent requirement.  Whatever protected speech gets swept up in the statute is not substantial enough to invalidate the statue.

Defense Counsel Need Only Read The Immigration Statute - Never Mind Cases - To Satisfy Duty To Provide Immigration Consequences Advice Under Padilla

Sanchez v. State, Minn.S.Ct., 2/22/2017.  Talk about perfect timing. Justice Stras gets to suit up in his professorial robes, mount the podium and teach the rest of us a little bit about the Kafkaesque work of immigration.  Sorry, no Powerpoint.  Mr. Herrera Sanchez pled guilty to third degree criminal sexual conduct, which led ICE to initiate removal proceedings against him.  To avoid that Mr. Herrera Sanchez moved to withdraw his guilty plea; he said that his attorney provided ineffective assistance by failing to accurately inform him that his plea would lead to his removal.  

So, just what advice did counsel provide to Mr. Herrera Sanchez? Well, first counsel had him execute the standard issue plea petition which has this to say about immigration:

My attorney has told me and I understand that if I am not a citizen of the United States this plea of guilty may result in deportation, exclusion from admission to the United States of America or denial of citizenship.” (Emphasis added.)

This is bad advice in Mr. Sanchez's case, which ICE agents demonstrated by arresting Mr. Sanchez the moment he left the court room.  Next, during the plea colloquy counsel told Mr. Herrera Sanchez that his plea of guilty "could result in either deportation, exclusion from admission to the United States, or denial of citizenship."   More bad advice, see ICE actions.  At the post conviction hearing, defense counsel testified that he told Mr. Sanchez that he would be deported as a result of his plea.

At sentencing the court gave Mr. Herrera Sanchez a stay of imposition of sentence. As mentioned already, this turned out to be a short-lived perk because ICE took Mr. Herrera Sanchez into custody as soon as the gavel fell. ICE then issued a final administrative removal order, explaining that third degree criminal sexual conduct involving a minor was an "aggravated felony" under the immigration laws. Any alien who is convicted of an aggravated felony at any time after admission is deportable.  8 U.S.C. 1227(a)(2)(A)(iii).

Mr. Herrera Sanchez said that Padilla required his counsel to have advised him that his plea would result in his deportation rather than just that deportation was a possibility.  Padilla, says that when the consequences of a plea are "succinct and straightforward" then counsel has to convey what that consequence is.  Otherwise, counsel need only provide some vague, lawyer esque answer, "Well, this may happen or that may happen, no one really knows."  Therein lies the rub: how does counsel ascertain whether the immigration consequences of a plea are "clear and certain."  

Both immigration administrative interpretations and case law state that Mr. Herrera Sanchez's plea rendered him deportable.  The statutes, not so much.  There are two statutes that render a noncitizen presumptively deportable for the commission of an "aggravated felony" and "sexual abuse of a minor" is included in the list of felonies considered to be "aggravated".  The problem is, however, that Congress left it to immigration and the courts to flesh out just what state crimes constituted "sexual abuse of a minor." Justice Stras makes the somewhat dubious claim that the federal courts have not been able to agree that an adult who rapes a child has committed "sexual abuse of a minor."  He supports this claim by citing Rangel-Perez v. Lynch, 816 F.3d 591 (10th Cir. 2016), which doesn't say that at all:

Because it requires no mens rea, the Utah statute punishes a broader range of conduct than the conduct that falls within the INA's generic “sexual abuse of a minor” offense, which requires proof of at least a “knowing” mens rea. A conviction under the Utah statute, then, does not fall categorically within the INA's generic “sexual abuse of a minor” offense; Rangel–Perez's Utah conviction does not qualify as an “aggravated felony” under the INA; and he is not disqualified from seeking discretionary cancellation of removal.

Although Justice Stras clearly relishes diving into the weeds to root out the intricacies of federal immigration law he concludes that it's way beyond defense counsel's constitutional requirements of effective assistance of counsel to do the same.   Essentially he says just read the statute; if it's not abundantly clear then any old answer will do. 

Justice Lillehaug concurred in the result.  He said that it was "clear as a bell" that Mr. Sanchez would be deported as a result of his plea; ICE drove home that clarity by arresting Mr. Sanchez the minute he left the courtroom.  Justice Lillehaug essentially chides Justice Stras for the lecture as being unnecessary.  This is because at the post conviction hearing defense counsel testified that he did advise Mr. Sanchez that he would be deported if he pled guilty. The post conviction court accepted that assertion in its findings of fact. End of story, Padilla's duty fulfilled.

No Error In Granting For Cause Challenge To Prospective Juror Who Lied on Juror Questionare

State v. McKinley, Minn.Ct.App., 2/13/2017.  A prospective juror in this criminal sexual conduct case flat out lied about his prior record. In answer to a question on the written questionnaire about whether he'd been arrested or convicted of a crime the juror owned up to some but not all of such incidents.  The state moved to strike this juror for cause and the trial court granted that request.

Mr. McKinley on appeal said that because the rule, Rule 26.02, subd. 5(1)(1), does not explicitly list "not being forthcoming" as a basis on which to challenge a juror for cause the trial court abused its discretion by granting the challenge.  This is a "plain error" review of this claimed error and the court doesn't get past the first requirement, that the error be "plain".  

A juror may be challenged for cause when “[t]he juror’s state of mind—in reference to the case or to either party—satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the challenging party.” Minn. R. Crim. P. 26.02, subd. 5(1)(1). McKinley is correct that nothing in the rule explicitly allows the district court to excuse a juror for cause because a juror does not give truthful, candid answers to the court’s questions on a juror questionnaire or during voir dire. But the rule allows a court to dismiss a prospective juror if the juror demonstrates a state of mind that satisfies the court that the juror cannot try the case impartially. See id. 

Arrest Warrant Good Enough To Authorize Cops To Enter Third Person's House to Make the Arrest

State v. deLottinville, Minn.S.Ct., 2/15/2017.  The cops went to an address with an arrest warrant for Ms. deLottinville.  That’s not where Ms. deLottinville lived.  When one of the officers saw Ms. deLottinville through a ground level patio door he immediately went in and arrested her.  Ms. deLottinville said that the arrest warrant wasn’t enough to authorize entry into a third person’s residence.  The trial court, the court of appeals, and now the supreme court disagreed.  Justice Lillehaug puts Minnesota into the camp that says that an arrest warrant is a “bad ass sword” that unlocks any and all doors.  Justice Chutich dissented, concerned that the cops will take this new authority to rely upon an arrest warrant to barge into any and everyone’s house in pursuit of the person named in the warrant.

Payton v. New York, 445 U.S. 573 (1980) says that a valid arrest warrant justifies entry into the home of the subject of the warrant. The Supreme Court, however, has never extended Payton, to permit entry into a third person's home in order to arrest the person named in the arrest warrant.  The Minnesota Supreme Court had previously mused that in that situation the officers may need a search warrant but it wasn't really the holding of the case. State v. Patricelli, 324 N.W.2d 351 (Minn. 1982).

The officer's testimony amazingly similar to that of another officer in an Eighth Circuit Opinion a long time back, United States v. Clifford, 664 F.2d 1090 (8th Cir. 1981).  In that case, officers went to a third person's residence with an arrest warrant for Clifford.  A cop swore he saw and recognized Clifford inside so he went in and arrested him.  The Eighth Circuit said that even assuming that Clifford had a legitimate expectation of privacy in a third person's home, the officer's knowledge of Clifford's presence inside the third person's home justified entry to execute the arrest warrant for Clifford.  Just swap out Clifford for deLottinville - which is exactly what the court of appeals did - and you're done:

[W]hen police have probable cause to believe that the subject of a valid arrest warrant is present as a visitor in the residence of another, police may enter that residence to effectuate the arrest under that warrant without violating the Fourth Amendment rights of the person named therein.

Post Conviction Claims, All 200 Pages of Them, Are Statutorily Time Barred

Hannon v. State, Minn.S.Ct., 2/8/2017.  Here's about all that needs to be said about this third post conviction petition, from  Justice Hudson's opening salvo:

This case involves Hannon’s third petition for postconviction relief, which he filed in September 2015. In nearly 200 pages of materials, Hannon brought a host of claims, which generally fall into 12 categories: (1) an unauthorized sentence, (2) incompetence to stand trial; (3) ineffective assistance of trial counsel; (4) judicial bias by the trial judge; (5) judicial bias by the previous postconviction judge; (6) failure to serve the indictment; (7) actual innocence; (8) evidence of false DNA testimony from the BCA scientist; (9) evidence of false/inaccurate statements from the State’s witnesses; (10) evidence relating to substantive evidence referenced at trial; (11) evidence of a violation of Brady v. Maryland, 373 U.S. 83 (1963); and (12) prosecutorial misconduct. The postconviction court denied Hannon’s petition without holding an evidentiary hearing, concluding that all of the claims except the sentencing claim were untimely filed under section 590.01, subdivision 4, because they were brought more than 2 years after our disposition of his direct appeal and none of the statutory exceptions to the 2-year statute of limitations applied. Regarding the sentencing claim, the court held that the claim was meritless because the applicable statute, Minn. Stat. § 609.106, subd. 2(2), authorized the sentence that Hannon received. Hannon then filed this appeal.

Driving in Light Rain Provided Lawful Basis To Stop Vehicle

State v. McCabe, Minn.Ct.App., 2/6/2017.  There's a statute that says that drivers must display lighted headlamps and lighted tail lamps in three circumstances:

(1) at any time from sunset to sunrise; (2) at any time when it is raining, snowing, sleeting, or hailing; and (3) at any other time when visibility is impaired by weather, smoke, fog or other conditions or there is not sufficient light to render clearly discernible persons and vehicles on the highway at a distance of 500 feet ahead.

Minn.Stat. 169.48, subd. 1(a).  Well, when the cops stopped the vehicle in which Mr. McCabe was a passenger it was "raining lightly."  There were no lights.  Mr. McCabe had a handgun that he wasn't supposed to have so the state charged him with that.  He said, and the trial court agreed, that despite this "light rain" the visibility was not impaired and so the cops had no business stopping the vehicle.

The court of appeals said, no, the statute creates three distinct conditions under which lights must be displayed.  In this case, the "light rain" was enough.  That gave the cops a lawful basis to have stopped the vehicle and that was that.

No Fifth Amendment Violation By Asking a Defendant Who Is Not In Custody Just Where He Was When the Cops Showed Up to Execute A Search Warrant

State v. Heinonen, Minn.Ct.App., 1/30/2017.  Police executed a search warrant at a house where Mr. Heinonen happened to be at the time. Officers told him that he was not under arrest although he was handcuffed.  The officers then demanded to know Mr. Heinonen's full name, date of birth, and where he was when the cops showed up.  Mr. Heinonen provided that information, including that he had been in the southwest bedroom.  The cops then took Mr. Heinonen out to a squad car, read  him his Miranda rights, when he invoked.

Police found ammunition and a short barreled shotgun  in the southwest bedroom.

At the jail, an officer asked Mr. Heinonen to consent to a DNA test; the officer did not precede this request with another Miranda warning. Mr. Heinonen consented to the test but also blurted out that he had touched the shotgun.  A jury convicted Mr. Heinonen of possession of the shotgun by an ineligible person.

Mr. Heinonen challenged the admission of his statements at the house and at the jail.  The court of appeals said that just because the cops had handcuffed Mr. Heinonen that did not mean that he was in custody.  In fact, the court said that he was not in custody.  The court seems to say that if there is more than one person inside the house at the time of execution of the search warrant, the cops are authorized to restrain all of them regardless whether any of the occupants are causing a problem. So, since he was not in custody the police had no obligation to precede the demand to Mr. Heinonen to tell them where he was when they arrived with a Miranda warning.  Somehow this question about his location inside the  house when the cops arrived was also not an "interrogation" but just an "on-the-scene questioning" intended to "get a preliminary explanation of a confusing situation."  Really?  What was confusing other than to figure out who to tag with any contraband discovered during the search?  How better to resolve that confusion than to get Mr. Heinonen to them the cops where he was?

As to the question at the jail whether Mr. Heinonen would consent to a DNA test, this, too, is not an "interrogation" such that it triggers a Miranda warning.  The court insists that Mr. Heinonen "volunteered" the admission that he'd touched the shotgun so this slip of the tongue the court says is on Mr. Heinonen.

Manipulation of Steering Wheel of a Moving Vehicle By a Passenger Is Operation" of a Motor Vehicle

State v. Henderson, Minn.Ct.App., 1/30/2017.  Backseat driving, actually passenger seat driving, is still, well, driving, or in the parlance of the criminal vehicular operation laws "operating a motor vehicle."  Mr. Henderson got annoyed with the driving of the "driver" - the person sitting behind the steering wheel - and grabbed the wheel. The laws of motion and gravity being what they are, the car turned in the direction that Mr. Henderson charted. Unfortunately, Mr. Henderson had no access to the brake pedal from the passenger seat and so his wheel maneuver caused the driver to lose control of the car, which crashed upside down.  This got the attention of the cops, which got their attention on Mr. Henderson, which lead them to charge him with criminal vehicular operation.

Mr. Henderson said that to "operate" a motor vehicle required that he activate or manipulate any of the controls of a motor vehicle necessary to put the vehicle in motion.  He borrowed this definition from the jury instructions for driving under the influence of alcohol.  He said that grabbing the wheel kept the car in motion but did not put the car in motion; for that you needed access to the gas pedal.  Neither the trial court nor the court of appeals was persuaded:

We agree that the manipulation of the steering wheel of a moving motor vehicle by a passenger constitutes “operation” of a motor vehicle under Minn. Stat. § 609.21. This conclusion is supported by the policy of giving impaired driving laws the broadest possible effect in favor of public safety, the plain meaning of the word “operate,” and the fact that the vehicle was not stationary when appellant manipulated the steering wheel. 

Court Ducks Question Whether Fifth Amendment Prohibits Testimony About a Defendant's Post Arrest, Pre-Miranda Silence During Squad Car Ride to Jail

State v. Lilienthal, Minn.S.Ct., 2/1/2017.  Without objection, during the state’s case in chief the prosecutor elicited testimony from an officer that following Mr. Lilienthal's arrest and placement in a locked squad car but before any Miranda warning he remained silent. SCOTUS has not addressed whether the Fifth Amendment prohibits evidence of a defendant’s post-arrest, pre Miranda silence. The federal circuits are evenly split.  Because there was no contemporaneous objection to the admission of this testimony, the appellate review standard is "plain error."  Because the federal circuits are split and SCOTUS hasn't said Justice Hudson could proclaim that any error in the admission of such evidence is not plain, under the “plain error” doctrine, and the analysis goes no further.

Mr. Lilienthal did timely object to the prosecutor’s two references to this silence during closing argument.  In keeping with its practice of punting whenever possible and eschewing guidance to the lower courts, the Justice says that even if these references were error they were harmless beyond a reasonable doubt.  End of discussion.

There are two end results, one neutral and the other not so much. The neutral end result is that the court consumes a lot of ones and zeros to produce an uninformative fourteen page opinion that simply doesn't answer the question that had prompted them to take the case in the first place.  It's really important, nonetheless, to keep in mind that because the court ducked the question, it remains unanswered whether evidence of post arrest, pre Miranda silence is admissible. 

The not good end result is that the Justice incorrectly suggests that the answer would be “yes”.  She says this based on a SCOTUS case from 2013, Salinas v. Texas, 133 S.Ct. 2174 (2013) in which Justice Alito said that the state may introduce a defendant’s silence to the one of many questions asked during a non-custodial interrogation. Alito said that a response of silence to a question is not the invocation of any Fifth Amendment privilege and so no error occurred in admitting testimony about that silence. 

Here, there was no interrogation, just a car ride in which Lilienthal kept his mouth shut because no one was talking to him.  Officers arrested Lilienthal somewhere up on the Iron Range and then drove him to jail in Duluth.  During the ride to jail, Lilienthal said nothing except to say that he didn’t need medical attention.  Other than that he wasn't asked any questions:

The record provides no evidence to indicate that Lilienthal ever made a statement in response to his arrest, except to deny that he needed medical attention. Deputy Feiro did not interrogate Lilienthal or read him a Miranda warning before he drove Lilienthal to the jail in St. Louis County.

This is a horrific opinion that some prosecutors and judges will surely misread and misapply.  Bring the popcorn because juries may soon be transfixed by squad videos supposedly indicative of guilt of arrested suspects riding silently in the back of the squad on the way to jail.

For Sex Offenders Serving a Life Sentence "Minimum Term of Imprisonment" Before Eligible for Release Consideration is a Guidelines Number

Rushton v. State, Minn.S.Ct., 1/25/2017.  Certain repeat sex offenders are subject to a statutory requirement of a life sentence with possibility of release.  Minn. Stat. 609.3455, subd. 4. Subdivision 5 of this statute directs the district court to “specify a minimum term of imprisonment, based on the sentencing guidelines or any applicable mandatory minimum sentence” that “must be served before the offender may be considered for supervised release.” Minn. Stat. § 609.3455, subd. 5. Mr. Rushton is serving such a life sentence with possibility of release.  He thought, however, that "minimum term of imprisonment" meant two-thirds of his presumptive guidelines sentence.  There's a statute that says just that, Minn.Stat. 244.101, subd. 1(1); "minimum term of imprisonment" is defined as "equal to two-thirds of the executed sentence."

Justice Chutich, however, thought that the more specific directive of 609.3455, subdivision 5 controlled.  The court still had to interpret the phrase "minimum term of imprisonment," which it did by saying that the language of the statute was unambiguous.  The reference to the guidelines meant that the trial court was required to determine the offender's criminal history score on the two axis and pick a number from the resulting box.  That number would be the "minimum term of imprisonment" that the offender would have to serve before he could be considered for release.

The court was clear in saying that this was the drill for sex offenders subject to the life sentence under 609,3455.  For everyone else "minimum term of imprisonment" means two-thirds of the actual sentence:

Nothing in our opinion today should be read as altering the general definition of “minimum term of imprisonment” contained in section 244.101 or Minnesota Sentencing Guidelines 1.B.7 for cases not involving a mandatory life sentence under Minnesota Statutes § 609.3455, subd. 5. As we stated in Hodges, “[i]n most cases, the minimum term of imprisonment ‘is the period of time equal to two-thirds of the inmate’s executed sentence.’ ” 784 N.W.2d at 829 n.2 (emphasis added) (quoting Minn. Stat. § 244.01, subd. 8). But, in cases involving a mandatory life sentence for certain repeat sexual offenders, Minnesota Statutes § 609.3455, subd. 5, and Minnesota Sentencing Guidelines 2.C.3(a)(1) provide a different method for calculating a minimum term of imprisonment. 

Trial Court Did Not Impermissibly Inject Itself Into Plea Negotiations

Wheeler v. State, Minn.Ct.App., 1/23/2017.  The court of appeals tackles the question when does the trial court get too far into the weeds of plea negotiations?  Ms. Wheeler pled guilty to aiding and abetting second degree unintentional murder.  The state had initially charged her with intentional second degree murder.  Two of her children witnessed part of the murder and the trial court made it known to the parties that the idea of these kids having to testify against their mother didn't sit too well.  So, he instructed the parties to make a good faith effort to reach a resolution and to keep it apprised of any movement.

The parties kept negotiating right up to and continuing after the start of trial.  Just before trial the judge let it be known that a plea to manslaughter in the second degree, even with a double departure sentence was unacceptable.  After the first day of trial the judge stated that he'd heard that the state was willing to offer an unintentional second degree murder with some yet to be determined sentencing range within the applicable guidelines box but that Ms. Wheeler had declined that offer.  In actuality, she and her attorney hadn't yet discussed it.  During the weekend recess, Ms. Wheeler's attorneys notified the court that that she would be willing to plead guilty to aiding and abetting second degree unintentional murder, with a guidelines sentence to be determined by the trial court. When the trial resumed, however, Ms. Wheeler entered a guilty plea to that second degree unintentional murder but with a specific sentencing range of 128 to 180 months.  The trial court accepted that plea.  At sentencing the trial court imposed a sentence of 172 months.

After a while, Ms. Wheeler filed a post conviction petition in which she said she was entitled to withdraw her guilty plea because the trial court had improperly participated in the plea negotiations.  The court summarily denied the petition.

Here's how the court has described the role of the trial court in plea negotiations:

The ultimate judicial responsibility must be to make reasonably certain that a person innocent of any crime has not been improperly induced to plead guilty to a crime. It is likewise a judicial responsibility to protect society against a defendant’s being permitted to bargain for a plea excessively lenient for the gravity of the crime apparently in fact committed. Although the court should neither usurp the responsibility of counsel nor participate in the plea bargaining negotiation itself, its proper role of discreet inquiry into the propriety of the settlement submitted for judicial acceptance cannot seriously be doubted. 

State v. Johnson, 279 Minn. 209, 156 N.W.2d 218 (1968).  

The court of appeals said that a trial court crosses the line into impermissible interjection when it induces a guilty plea by a promise of a particular sentence, or when it imposes plea terms against the objections of a party.  Some examples include:

A district court reversibly errs when it induces a guilty plea by a promise of a particular sentence, or when it imposes plea terms against the objections of a party. In Melde, we held that the district court improperly inserted itself into plea negotiations when it told the defendant that it would impose a 46-month executed sentence if he affirmed his guilty plea after the district court had rejected a proposed plea agreement. 778 N.W.2d at 379. In Anyanwu, we held that the district court erred when it promised and gave the defendant a 210-month sentence over the prosecutor’s objection. 681 N.W.2d at 413, 415. We stated that “the district court directly and unequivocally promised the defendant a particular sentence in advance, and forced the plea bargain on the prosecutor.” Id. at 415. In Vahabi, we held that the district court impermissibly participated in plea negotiations when it sentenced the defendant in a manner objected to by the state, and which led us to conclude that the “[t]he parties to [the] plea agreement were the court and the defendants, not the prosecution and the defendants.” 529 N.W.2d at 361. And in Moe, we held that the district court impermissibly inserted itself into plea negotiations when it offered the defendant a downward departure from the sentencing guidelines over the prosecutor’s objection, if the defendant cooperated with the police in an unrelated matter. 479 N.W.2d at 429. 

Ms. Wheeler said that the court had facilitated a plea agreement by indicating that it would not sentence at either the top or the bottom of the sentencing range.  The was not, says the court of appeals, an unequivocal sentencing promise that a trial court can't make.  She also said that the trial court impermissibly suggested that the state offer an amended charge of second degree unintentional murder. The court of appeals seem to think that this was a closer call but decided that the court hadn't really extended a plea offer, or if it did Ms. Wheeler rejected it. The record supported the conclusion that it was the state that had initially offered the second degree unintentional murder plea, not the court.  Finally, Ms. Wheeler said that the trial court impermissibly pressured the parties to enter into a plea agreement so that her children would not have to testify against her at trial.  The court of appeals concluded that this was really nothing more than fair comment if not part of the court's responsibility to monitor plea negotiations. nb tgtbg00121

In the Absence of Ambiguity The "Plain Meaning" of an Ordinance Controls

State v. Vasko, Minn.S.Ct., 1/18/2017. What better way is there to drive home the company line on the proper way to construe a statute than the Lester Prairie City "blight" ordinance?  Ms. Vasko was keeping a maroon Oldsmobile in her front yard; the tabs had been expired for years.  It being a quiet day in Lester Prairie the police chief took an interest in Ms. Vasko's front yard.  Eventually, the chief cited Ms. Vasko for violating the city's ordinance - did I mention that the city code is a whopping three hundred sixty-three pages, not bad for a city of 1,690 - against keeping junked cars in one's front yard. Here's what it says:

It shall be unlawful for any person . . . occupying or owning private property within the City of Lester Prairie to keep or permit to be kept any junked or abandoned vehicles or other scrap metal on such private property . . . for a period in excess of thirty (30) days without a special use permit granted by the City Council. 

Let's call this first section of the ordinance the "special use permit" section.  That's because there's another section - let's call it the "general blight" section - that identifies all manner of conditions that in the city's considered opinion constitute "blight or blighting factors," including junk vehicles and poisonous plants. This "general blight" section requires the city to give written notice to the property owner to remove the blight condition within ten days. Both sections have a penalty provision, which pronounces that it is a misdemeanor to violate "this ordinance."

The city cited only the "special use permit" language in the citation that it issued to Ms. Vasko.  Ms. Vasko took the city to trial; she said that because she had been moving the Oldsmobile in and out of her garage there was no continuous thirty days during which the car affronted the city sensibilities; and, she didn't get her ten day notice.  (She apparently fabricated a letter from the city clerk that appeared to be a "special use permit, but we don't need to go there.) She lost but the trial court imposed a petty misdemeanor sentence. Undaunted, she appealed to the court of appeals, which reversed the conviction; that court read the ordinance to create a single crime which in its view the state hadn't proved.  Justice Chutich reinstates the conviction.

The Justice said that the ordinance creates two separate crimes:  the "special use permit" crime and the "general blight" crime.  Each has its own penalty section and thus each stands separate from the other.  The court of appeals was wrong to determine that the ordinance was ambiguous and thus had no business construing it the way it did.

And the company line:

We review issues of statutory interpretation de novo. Nelson, 842 N.W.2d at 436. The purpose of statutory interpretation is to ascertain the intent of the Legislature. Christianson v. Henke, 831 N.W.2d 532, 536 (Minn. 2013). When interpreting a statute, “we give words and phrases their plain and ordinary meaning.” Premier Bank v. Becker Dev., LLC, 785 N.W.2d 753, 759 (Minn. 2010) (citing Minn. Stat. § 645.08 (2016)). “If a statute is unambiguous, then we must apply the statute’s plain meaning.” Larson v. State, 790 N.W.2d 700, 703 (Minn. 2010). If, however, a statute has more than one reasonable interpretation, then it is ambiguous, and we may apply the canons of statutory construction to determine its meaning. State v. Hayes, 826 N.W.2d 799, 804 (Minn. 2013).

No Error in Refusal To Instruct Jury on Cross Racial Identification

State v. Thomas, Minn.Ct.App., 1/17/2017.  A white male identified Mr. Thomas, a black male unknown to the white male, as the person who held him up at gunpoint.  At trial Mr. Thomas requested an instruction on cross racial identification, the wording of which isn't pertinent to the opinion.  The defense cited to some opinions from other states, and to some of the scientific literature that has studied the reliability of such identifications, but there was no expert testimony offered in support of the request.  The trial court declined the request and the court of appeals upholds that decision.

The court of appeals said that it was up to the supreme court to modify the standard jury instruction on identification testimony. That would have been enough to affirm the trial court's decision, but the court decided to dig up some really old cases - well before decades of research on the perils of eye witness identification - to reaffirm the antiquated notion that such things as cross examination, proper jury instructions, the burden of proof, jury unanimity are all more than adequate to safeguard against a conviction based on a false eye witness identification.

There are a couple of things that the court of appeals did not mention. Just a few years ago the supreme court rejected a challenge to the refusal of the trial court to admit the very kind of expert testimony that was absent for Mr. Thomas.  State v. Mosley. Second, according to the National Innocence Project, eyewitness misidentification is the greatest contributing factor to wrongful convictions proven by DNA testing.  Read about that here.

Compelling a Defendant to Provide Fingerprint In Order to Unlock Cell Phone Not A Fifth Amendment Violation

State v. Diamond, Minn.Ct.App., 1/17/2017.  Police arrested Mr. Diamond on suspicion of burglary.  Following his arrest, police obtained and executed a search warrant to seize Mr. Diamond's shoes and cell phone. Then, the police got another warrant to search the contents of the cell phone, only they were unable to unlock it.

So, the state got an order from the trial court compelling Mr. Diamond to provide his fingerprint in order to unlock the phone. Mr. Diamond complained that this violated his Fifth Amendment right not to incriminate himself.  Both the trial court and the court of appeals disagreed with that assertion.

Before the advent - or at least the ubiquitous proliferation - of cell phones, the U.S. Supreme Court said that the Fifth Amendment privilege applies to communications.  A defendant's communication must, itself, explicitly or implicitly, relate a factual assertion or disclose information.  Doe v. United States, 487 U.S. 201 (1988). Fingerprints, blood samples, voice exemplars, handwriting specimens may be obtained from a defendant against his will.  The court declines to make an exception for cell phones.  So, it may be more convenient to use a fingerprint to lock/unlock that cell phone but it won't keep the wolves at bay.

Step Grandparent-Step Granddaughter Relationship Is "Significant Relationship" under CSC Laws

State v. Reyes, Minn.Ct.App., 1/9/2017.  Mr. Reyes sexually assaulted his step granddaughter.  The state charged him with criminal sexual conduct based on the age of the step- granddaughter and based on a "significant relationship."  Mr. Reyes challenged that "significant relationship" allegation, saying that the statute's definition of that term did not extend to step _ relationships:

A “significant relationship” is defined as a circumstance in which the actor is “any of the following persons related to the complainant by blood, marriage, or adoption: brother, sister, stepbrother, stepsister, first cousin, aunt, uncle, nephew, niece, grandparent, greatgrandparent, great-uncle, [or] great-aunt.” Minn. Stat. § 609.341, subd. 15(2).

Mr. Reyes argued, "Read the statute; it doesn't include step grandparents."  The state said, "Read the statute; the phrase "related by blood, marriage, or adoption" encompasses step grandparents because they are grandparents related by marriage."  The court of appeals liked both of those arguments, so it declared that the statute was ambiguous. Venturing out on its own devices - known as statutory construction - the court had no difficulty concluding that the better policy was to include step grandparents into the mix.

The state also wanted to introduce expert testimony to explain why the step granddaughter delayed for some time in reporting the abuse and to explain some of her other behavior.  Mr. Reyes objected, saying that this was nothing more than bolstering the step granddaughter's credibility. Mr. Reyes made this objection pretrial; the court held a hearing on the objection pretrial but deferred a ruling until during the trial.  Mr. Reyes did not renew his objection to this expert's testimony once the trial court said it could be admitted; this left his appellate issue at the mercy of the plain error standard.  This allowed the court of appeals to uphold the admission of the testimony because that trial ruling was within the trial court's discretion, which the court concluded had been properly exercised.  In large part the court reached this conclusion by reliance upon a 1987 case, State v. Hall, 406 N.W.2d 503 (Minn. 1987).  There, the court had upheld expert testimony on the characteristics commonly exhibited by sexually abused adolescents. 

Court Rejects Constitutional Challenges to Statutory Mandatory Restitution to Identify Theft Victims

State v. Rey, Minn.Ct.App., 1/9/2017.  The trial court ordered Mr. Rey to pay $1,000.00, the mandatory statutory restitution amount, to each of sixty-six identity theft victims.  Mr. Rey objected on various constitutional grounds, all of which the trial court, and now the court of appeals rejected.  Here are the four questions that the court addressed:'

I. Does the minimum-restitution provision in Minnesota Statutes section 609.527, subdivision 4, violate Rey’s substantive due-process rights?

II. Does the minimum-restitution provision in Minnesota Statutes section 609.527, subdivision 4, violate Rey’s procedural due-process rights?

III. Did the district court fail to consider Rey’s ability to pay before ordering restitution?

IV. Is the minimum-restitution provision in Minnesota Statutes section 609.527, subdivision 4, an unconstitutional fine?

The court answered, No, to each of these questions.

Defendant Has Right to Attend Restitution Hearing

State v. Rodriguez, Minn.Ct.App., 1/9/2017. Mr. Rodriguez challenged an award of restitution.  The court scheduled a hearing on the challenge. For whatever reason Mr. Rodriguez was not brought in from whatever prison he was housed to attend the hearing.  The court held the hearing anyway, contending that Mr. Rodriguez had waived whatever right he had to attend the hearing.

A few years back the court of appeals held that a defendant has a right to counsel at a restitution hearing.  State v. Maddox, 825 N.W.2d 140 (Minn.Ct.App., 2013.  It seemed more than reasonable, if not logical, to extend that right to the right to be present at a restitution hearing.  On the waiver question, regardless of whose job it was to haul Mr. Rodriguez in from prison, any "waiver" had to have been made personally by Mr. Rodriguez.  That not being the case, there was no valid waiver.  

That said, holding the hearing in Mr. Rodriguez' absence was still subject to a harmless error analysis; the court declined to take up the question whether any error was structural and thus requiring automatic reversal.  The court concluded that in this case the error was not harmless.  So, Mr. Rodriguez gets a redo on his restitution challenge.

Rule of Criminal Procedure Regarding Discretionary Jury Sequestration Takes Precedence over Statute's Mandatory Sequestration Requirement

State v. Drew, Minn.Ct.App., 1/3/2017.  Mr. Drew went to trial on the state's charge of being an ineligible person in possession of a firearm.  It was a two day trial.  Before retiring to deliberate the trial court told the jurors that they would deliberate until 4:30 p.m. and then be released until the following Monday.  As the appointed hour approached, the jury sent out a note stating that they were "100% sure that they are unable to reach a unanimous verdict." The judge told them to keep at it until 4:30 and that they would then be released until Monday.  After the jury left the courtroom Mr. Drew said he wanted the jury sequestered for the weekend.  The trial court denied that request.

There is a conflict between the criminal rules, 26.03, subd. 5(1) and the statute, 631.09.  The rule gives the trial court discretion whether to sequester a jury; the statute says that once a jury retires to deliberate they must be kept together until they reach a verdict. The court of appeals concludes that the rule takes precedence because the statute is procedural, rather than substantive.  A court rule that conflicts with a procedural rule takes precedence.  

Mr. Drew also make a couple of complaints about evidentiary rulings. However, because there was no objection during the trial "plain error" is the standard of review, which Mr. Drew could not meet.

No Error in Excluding Evidence of Past Bad Acts of Victim in Support of Self Defense Claim

State v. Zumberge, Minn.S.Ct., 1/4/2017.  Mr. Zumberge shot and killed his neighbor, Todd Stevens, and shot and wounded Mr. Steven's girlfriend, Jennifer Clevon.  Stevens and Clevon regularly fed deer who came into their yard, a practice that Mr. Zumberge didn't approve.  On the day of the shooting Mr. Zumberge's wife, Paula got into a yelling match with Clevon, who was in her yard across the street.  Stevens came over to Clevon.  Mr. Zumberge grabbed a shotgun, climbed out a basement window and from the back corner of his house shot Stevens and Clevon.  Mr. Zumberge claimed self defense; he claimed to have lip-read Stevens threaten to kill Paula, and he claimed that he saw Stevens reach for his belt. Stevens had a phone holder attached to his belt but was not otherwise armed.  A jury rejected the self defense claim and convicted Mr. Zumberge of the homicide and attempted homicide.

Mr. Zumberge complained on appeal that the trial court had denied him the right to present a complete defense by excluding testimony of a laundry list of past bad acts of either Stevens or Cleven, offered to prove that he had a reasonable fear of great bodily harm from Stevens.  Such evidence is admissible only if Mr. Zumberge proved that he knew of the specific acts at the time of the shooting, and the acts "could legitimately affect a defendant's apprehensions." State v. Matthews, 221 N.W.2d 563 (Minn. 1974).  Evidence of such acts must also be relevant and more probative and prejudicial.

Justice Lillehaug concludes that the excluded evidence was inadmissible for one of three reasons:  it was irrelevant, Mr. Zumberge was unaware of it at the time of the shooting, or it was inadmissible hearsay.  In large part, the Justice said that Mr. Zumberge simply was unaware of the various specific acts at the time of the shooting.  In addition, Mr. Zumberge, himself, testified about a lot of the events so anything else was cumulative.

Mr. Zumberge also complained that the trial court should have given an instruction on murder in the third degree.  Every lesser degree of murder is an included offense, so the real battle is whether a defendant is entitled to any of those lesser included offense instructions based on the evidence presented at trial:

A lesser-included-offense instruction must be given when (1) the lesser offense is included in the charged offense, (2) the evidence provides a rational basis for acquitting the defendant of the offense charged, and (3) the evidence provides a rational basis for convicting the defendant of the lesser-included offense. State v. Dahlin, 695 N.W.2d 588, 598 (Minn. 2005)

Third degree murder is "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life ..." and so forth.  This offense only covers acts “committed without special regard to their effect on any particular person or persons; the act must be committed without a special design upon the particular person or persons with whose murder the accused is charged.” State v. Wahlberg, 296 N.W.2d 408, 417 (Minn. 1980). Third-degree murder “cannot occur where the defendant’s actions were focused on a specific person.” State v. Barnes, 713 N.W.2d 325, 331 (Minn. 2006).  

Well, Mr. Zumberge snuck out a basement window, peeked around the corner of his house and took aim at Mr. Stevens.  Justice Lillehaug thought that looked like Mr. Zumberge was "focused on a specific person."