Minnesota Criminal Caselaw Update for the Week of December 14-18, 2009

SUPREME COURT OF THE STATE OF MINNESOTA

David Lee Lasse v. 2007 Chevrolet Tahoe

The Minnesota Supreme Court rules that the “innocent owner defense” in Minn.Stat. § 169A.63, subd. 7(d) (2008), does not apply in a case of joint ownership of a vehicle if one of the joint owners is also the offender causing forfeiture of the vehicle. 

On May 16, 2006 Mr. Lasse finished a round of golf during the day and met his wife at the golf club later in the evening.  Mr. Lasse was on his way home while Mrs. Lasse had planned to play a round of evening golf.  Mr. Lasse testified that he never saw his wife hold a drink nor did he suspect that she had been drinking at all.  During the early morning hours of May 17, Mrs. Lasse was charged with DWI.  She subsequently plead guilty to second degree test refusal thereby triggering seizure of the vehicle.

Mr. Lasse challenged the seizure by filing the demand for judicial determination.  After a hearing, the district court concluded that the vehicle was not subject to forfeiture because Mr. Laase demonstrated that he was an “innocent owner.”  The County appealed and the district court granted the County’s motion to stay its order directing that the vehicle be returned to Mr. Laase pending appeal. The court of appeals affirmed.

The question presented in this case is whether the “innocent owner” defense provided for in Minnesota’s vehicle forfeiture statute, Minn.Stat. § 169A.63, subd. 7(d), applies to prevent forfeiture of the Lasses’ vehicle under this defense:

A motor vehicle is not subject to forfeiture under this section if its owner can demonstrate by clear and convincing evidence that the owner did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law or that the owner took reasonable steps to prevent the use of the vehicle by the offender.

The parties appear to agree that the “innocent owner” defense in the vehicle forfeiture statute is unambiguous. The parties disagree, however, over whether all owners of the vehicle must be innocent in order for the defense to apply. The statute is written in the singular, providing that the defense is available if the vehicle’s “owner” demonstrates innocence. But the County contends that we should rely on the canon in which the legislature has stated that the “singular includes the plural.”  With “owner” construed as “owners” in subdivision 7(d), the County argues it is clear that the defense does not apply to this case because both “owners” were not innocent.

Despite the opinions of three dissenting Justices, the Supreme Court reversed and the vehicle was forfeited.

COURT OF APPEALS OF THE STATE OF MINNESOTA

State of Minnesota  v. August Leroy Kihlgren

UNPUBLISHED OPINION

Kihlgren appeals his conviction of first degree sexual misconduct on the basis of prosecutorial misconduct arguing that the prosecutor disparaged his defense theory during closing argument.  The court affirmed his conviction.

The court will not reverse based on prosecutorial misconduct if the misconduct is harmless beyond a reasonable doubt. State v. Mayhorn. 720 N.W.2d 776, 785 (Minn.2006). An error is “harmless beyond a reasonable doubt only if the verdict rendered was surely unattributable to the error.”

Appellant’s defense theory involved characterizing the victims injuries as minimal and inconsistent with sexual assault. He argues that the prosecutor mocked this theory by stating “apparently the victim wasn’t beaten well enough for appellant’s counsel’s liking.”

The district court sustained appellant’s objections to these statements. But they represented just two lines in the prosecutor’s four-page argument and were a direct response to appellant’s characterization of the victims injuries. Considered in the context of the entire closing argument, the court ruled that the statements did not rise to the level of prosecutorial misconduct nor did they prejudice appellant.

State of Minnesota v. Naser Omer Ali

UNPUBLISHED OPINION

Ali was convicted of possessing cathinone, a Schedule I controlled substance found in “khat,” a plant grown in Africa.  The basis of Ali’s appeal was that he did not know that the substance in his possession, khat, contained cathinone.

From June 2005 to March 2006 Ali received multiple shipments via FedEx of khat.  Each shipment contained 4 to 17 pounds of the substance for a total amount of 140 pounds.  The khat had an estimated street value of $13,000.  Ali contends that he had no knowledge that the khat contained cathinone.

The operative statute provides that “[a] person is guilty of controlled substance crime in the fifth degree if … the person unlawfully possesses one or more mixtures containing a controlled substance classified in schedule I, II, III, or IV.”   Possession crimes require proof that the defendant “had actual knowledge of the nature of the substance” in his possession.

Ali argues that the evidence was not sufficient to establish that he knew that his khat contained cathinone. The state responds that Ali’s conduct shows that he knew he possessed an illegal controlled substance.

“The law is settled that a defendant need not know the exact nature of a drug in his possession to violate, it is sufficient that he be aware that he possesses some controlled substance.”  United States v. Villarce, 323 F.3d 435, 439 (6th Cir.2003) “Drug type and quantity are irrelevant to the mens rea element of which requires nothing more specific than an intent to distribute a controlled substance.”United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002)

Consistent with this precedent from other states and the overwhelming majority of federal circuits, the court held that when a defendant is prosecuted for possessing cathinone-containing khat, proof that the defendant was aware that he possessed a controlled substance satisfies the statute’s actual-knowledge requirement.

State of Minnesota v. Catherine McQueen

UNPUBLISHED OPINION

Appeallant entered a guilty plea to third degree DWI and sentenced to 15 days house arrest in Anoka County District Court.  McQueen later attempted to withdraw her guilty plea because she felt dizzy and ill and feared the onset of a seizure.  The denied withdrawal of the plea and upheld the conviction.

A criminal defendant does not have an absolute right to withdraw a guilty plea once it is entered. But Minn. R.Crim. P. 15.05, subd. 1, provides that any time before or after sentencing, a court shall allow withdrawal of a guilty plea “upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.” A manifest injustice exists where the plea was not accurate, voluntary, and intelligent. The voluntariness requirement insures that the guilty plea is not in response to improper pressures or inducements; and the intelligent requirement insures that the defendant understands the charges, his or her rights under the law, and the consequences of pleading guilty.  Withdrawal is not warranted if the defendant understood the nature and seriousness of the offense charged at the time of pleading.

Upon review of the record the court concluded that McQueen’s plea was voluntariy and intelligent and affirmed her conviction.

State of Minnesota v. Sadi Muhamed Gure

UNPUBLISHED OPINION

Gure was convicted of first degree DWI and appeals his conviction based on insufficient evidence to support the conviction.  The Court of Appeals affirmed the conviction.

At trial, the State’s only witness was the arresting officer.  The officer testified that upon receiving information from dispatch of a possible impaired driver, he located a vehicle matching the description.  He observed the vehicle swerve over the both fog lines and make an abrupt lane change.  After failing field sobriety test and refusing to submit to a preliminary breath test, Gure was arrested and taken to the police station.

Upon arrival, Gure apparently fell asleep.  Officer’s were unable to rouse Gure and subsequently had him taken to the hospital.  Because of thse circumstances, officers were unable to obtain a blood, breath or urine test. 

Appellant argues that this evidence is circumstantial in nature and that the state failed to prove beyond a reasonable doubt that appellant’s behavior and failure of field sobriety tests were due to alcohol impairment and not some other cause. But an individual can be convicted of driving while impaired by the testimony of an arresting officer alone. See State v. Waterston, 371 N.W.2d 650, 651-52 (Minn.App.1985).

State of Minnesota v. Breanna Vesaas

UNPUBLISHED OPINION

Vesaas appeals her third degree DWI conviction also on the basis of insufficient evidence.  Vesaas argues that the evidence is insufficient to support the guilty verdict because the state provided no expert testimony that the Intoxilyzer or its results were reliable or accurate.

The court affirmed her conviction reasoning:

“[T]he results of a breath test, when performed by a person who has been fully trained in the use of an infrared or other approved breath-testing instrument … are admissible in evidence without antecedent expert testimony that an infrared or other approved breath-testing instrument provides a trustworthy and reliable measure of the alcohol in the breath.” Minn.Stat. § 634.16 (2006). The standard of proof beyond a reasonable doubt for a DWI conviction does not require any particular type of evidence and does not require expert testimony on the reliability of the Intoxilyzer. State v. Birk, 687 N.W.2d 634, 638-39 (Minn.App.2004). Here, the test was performed by the police officer, a certified Intoxilyzer operator, in accordance with standard BCA testing procedure. This is sufficient to negate the need for expert testimony on the reliability of the test results.

Minnesota Supreme Court to Innocent Spouses: You Married Poorly So the Government Can Take Your Property

A deeply divided Minnesota Supreme Court today issued a ruling in Laase v. 2007 Chevy Tahoe which allows the government to take away private property from an innocent husband or wife in DWI related cases. The decision overturns the trial and appellate courts who found that a spouse who was a named co-owner on the title of a vehicle could assert the “innocent owner defense” and thus force the government to return property seized after a DWI arrest. This ruling gives the government the green light to seize property from those who are entirely innocent of any wrongdoing. In effect, the Court is allowing police departments and prosecutors throughout the State of Minnesota to punish people for the sole offense of marrying the wrong person. Lets hope the legislature finally sees the huge possibilities for abuse that the forfeiture laws create and finally purges “policing for profit” from this state.

Minnesota Criminal Caselaw Update for the Week of December 7-11, 2009

SUPREME COURT OF THE STATE OF MINNESOTA

State of Minnesota  v. Danna Back

Appellant’s second degree manslaughter conviction is reversed by the Supreme Court on grounds that the evidence used to convict was insufficient.

The case involves an apparent love triangle involving Danna Back, Nicholas Super, and the murder victim, Daniel Holliday.  Super was the gunman who murdered Holliday at his home early New Year’s Day, 2007.  Back, who at one time had dated both Super and Holliday, was present at the time of the murder.  Back and Holliday owned a home together for several years prior to the murder.  At some point during the on and off again relationship Back had dated Super.  Back was aware that there was tension between Super and Holliday.  Super had threatened Holliday with a gun in the past, in fact, at one time had fired shots into Holliday’s garage when Back was at Holliday’s house.

On the night of the murder, Holliday was celebrating the New Year with friends at his house.  Back had spoken to Holliday on the phone and was angered after hearing female voices in the background.  Back called several friends for a ride to his house.  Unable to find a ride, she called Super.  He agreed to drive her to Holliday’s house and drop her off.  Rather than drop her off and leave, Super remained behind the house in the alley.

Back and Holliday had an argument inside the house.  As Holliday was removing Back from the house, he and Super had a confrontation and Super shot and killed Holliday. The jury subsequently found Back guilty of second-degree manslaughter based on culpable negligence.  The indictment charged Back with murder based on her “acting alone or intentionally aiding, advising, hiring, counseling or conspiring with” Super.

The jury found Back guilty of second-degree manslaughter under Minn.Stat. § 609.205(1), based on her culpable negligence. Under the statute, a person is guilty of manslaughter if she “causes the death of another … (1) by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.” Minn.Stat. § 609.205(1). “Culpable negligence” is “more than ordinary negligence” and “more than gross negligence.”

A defendant cannot be negligent, culpably or otherwise, unless the defendant has a duty that he or she breached.

Under common law principles, there is generally no duty to protect strangers from the criminal actions of a third party. Ordinarily, there is no duty to control the conduct of a third person to prevent him from causing physical harm to another unless a special relationship exists, either between the actor and the third person which imposes a duty to control, or between the actor and the other which gives the other the right to protection.

The State made no argument that there was a relationship that would support the existence of a legal duty. Rather, in arguing that Back was culpably negligent, the State focuses on the foreseeability portion of the negligence analysis. The State contends that because Back knew that Super would pull his gun on “anybody,” had previously threatened Holliday with a gun, and was jealous of her relationship with Holliday, it was foreseeable to Back that Super would shoot Holliday.

The State’s focus on foreseeability does not resolve the threshold question of Back’s duty. Because the State seeks to hold Back criminally responsible for the criminal action of a third party, Minnesota cases require that the State prove that Back had a special relationship with either Super or with Holliday that gave rise to a duty to control Super or to a duty to protect Holliday against the actions of Super. The court held that under the circumstances presented here Back did not have a duty to control Super or to protect Holliday from Super, and she therefore was not culpably negligent in failing to control Super’s criminal actions.

COURT OF APPEALS OF THE STATE OF MINNESOTA

State of Minnesota  v. Larry Burt

UNPUBLISHED OPINION

Appellant challenges sufficiency of search warrant to show probable cause to believe that evidence of methamphetamine manufacturing would be found at his place of residence.  During the search, no evidence of meth was found.  Rather a firearm was found by police.  Burt was ineligible to possess a firearm and appeals the conviction based on insufficient search warrant.

Prior to the warrant being issued, a CRI alerted police Burt possessed items used to manufacture meth at his home.  Shortly thereafter, Burt was stopped and arrested for driving a stolen vehicle.  During a search of the vehicle, police found 5.08 grams of meth.  A search warrant was subsequently issued to search Burt’s residence where, again, no meth was found but police did find a firearm that Burt was ineligible to possess.

Appellant was charged with possession of a firearm by an ineligible person. He moved to suppress the shotgun, arguing that the search warrant was not supported by probable cause. Based on the totality of the circumstances, the district court concluded that the search warrant was supported by probable cause and denied appellant’s motion. The case was tried to a jury, which found appellant guilty as charged.

When reviewing pretrial orders on motions to suppress evidence, the court may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing–or not suppressing–the evidence.” The court accepts the district court’s underlying factual determinations bearing on a motion to suppress on Fourth Amendment grounds unless they are clearly erroneous.

Both the United States and Minnesota Constitutions require that a search warrant be supported by probable cause. U.S. Const. amend. IV; Minn. Const. art. I, § 10. In determining whether a warrant is supported by probable cause, the court gives great deference to the issuing court’s probable-cause determination. The court’s review is limited to ensuring “that the issuing judge had a ’substantial basis’ for concluding that probable cause existed.”

A substantial basis means a fair probability, “given the totality of the circumstances set forth in the affidavit before the issuing judge, including the veracity and basis of knowledge of persons supplying hearsay information … that contraband or evidence of a crime would be found in a particular place.” In reviewing the sufficiency of a search-warrant affidavit under the totality-of-the-circumstances test, “courts must be careful not to review each component of the affidavit in isolation.”

In the Matter of the Welfare of:  DEMF v. State of Minnesota

UNPUBLISHED OPINION

Appellant was convicted of misdemeanor theft and ordered to pay restitution to the victim totaling $495.  Appellant failed to pay and was adjudicated delinquent.  Appellant argues that the district court erred in requiring her to pay without considering her inability to pay.  Delinquency for failure to pay affirmed.

A district court has broad discretion to award restitution, but the record must provide a factual basis for the amount awarded by showing the nature and amount of the losses with reasonable specificity.

Here, at sentencing for the underlying theft, appellant did protest her ability to pay $495 restitution.  In response, the court said that it would re-address the issue of payment after a 90-day review hearing.  The district court showed that the court considered, but rejected, appellant’s argument that she was unable to pay restitution. At the 90-day hearing appellant had not demonstrated that she is prohibited from working or otherwise earning money, the court found no abuse of discretion in the district court’s decision to order restitution.

Supreme Court to County Jails: Minnesotans Are Still Innocent Until Proven Guilty

Jones v. Borchardt

The Minnesota Supreme Court has reversed the Minnesota Court of Appeals and ruled that a convicted offender is not required to pay the costs of confinement that accrued before the offender was convicted.

Unable to post bail, the defendant spent eight months in an Olmsted County jail before pleading guilty to aggravated robbery. He was sentenced to 78 months in prison and transferred to a state correctional facility. The county charged the defendant $25 per day totaling $7,150 for room and board for the time spent in thecounty jail.

The defendant filed an action seeking a declaration that he is not required to pay the amount he was charged for the cost of his confinement prior to being convicted. An Olmsted County District Court judge granted summary judgment to the county, and the Court of Appeals affirmed.

Minnesota Stat. sec. 641.12, subd. 3(a), allows a county to charge room and board for an offender convicted of a crime and confined in the county jail. The defendant argued, however, that during the time spent in jail he was not an offender convicted of a crime.

The Supreme Court ruled in favor of defendant reasoning:

An “offender” is “[a] person who has committed a crime.” Black’s Law Dictionary 1110 (9th ed.2009). The state deems a person to have committed a crime upon conviction. Under Minnesota law, “conviction” occurs when the court accepts and records a guilty plea. See Minn.Stat. § 609.02, subd. 5(1) (2008). Upon his conviction, and not before, Jones became an “offender” under Minn.Stat. § 641.12, subd. 3(a). Jones’s preconviction confinement costs were not an “offender’s” expenses because Jones was a nonoffender when he incurred them. The phrasing and words of the subdivision are unambiguous; we cannot disregard them to search for alternative legislative intent.

Minnesota Criminal Caselaw Update for the Week of November 30 – December 4, 2009

COURT OF APPEALS OF THE STATE OF MINNESOTA

State of Minnesota  v. Charlie Lewis

UNPUBLISHED OPINION

Several procedural matters at issue in this case.  The most noteworthy deals with appellant’s waiver of right to counsel as appellant’s conviction was reversed and remanded.  Appellant was convicted of criminal sexual conduct.  Appellant was originally appointed a public defender, but mid-way through the case appellant requested that the court appoint him a different public defender citing a conflict of interest.  The court declined.  The appellant decided to proceed pro se.  The court prudently appointed “stand by counsel,” that is, the original public defended would be available in the courtroom during the trial should the pro se litigant need assistance.

Appellant appealed his conviction arguing that he did not validly waive his right to counsel because the district court failed to ensure that his waiver was made knowingly, intelligently, and voluntarily. The court agreed, and noted that at the outset even though the court appointed standby counsel, it was clear to the court that appeallant intended to represent himself at trial. That fact triggered the requirement that the court follow the rules governing a criminal defendant’s waiver of counsel, which the court failed to do.

Criminal defendants have a fundamental constitutional right to the assistance of counsel. U.S. Const. amend. VI; Minn. Const. art. I, § 6. A criminal defendant may waive his right to the assistance of counsel, but such a waiver must be voluntary, knowing, and intelligent.

State of Minnesota  v. Jason Paul Hirman

UNPUBLISHED OPINION

Appellants burglary conviction reversed by virtue of the double jeopardy clause being violated.  In September 2006, a home in Washington County was burglarized.  The items stolen included tools and brand new men’s clothing with tags still attached from JC Penny.  The following month, October 2006, Dakota County officers were dispatched to an abandoned vehicle in the woods in Dakota County.  After identifying the vehicle, officers noticed appellant in the woods near two trailers and a tent.  The officers approached Hirman and asked for permission to search and Hirman consented.  During the search, officers found new men’s clothing with tags from JC Penny still attached and tools.  Soon thereafter, Hirman was charged with receiving stolen property in Dakota County and in January 2008 he plead guilty to the charge in Dakota County court.

In June 2007, Hirman was charged with the Washington County burglary…the burglary that which included the JC Penny clothes and tools.  A cigarette butt linked him to the burglary in Washington County.  Not only did Hirman possess the stolen property, clearly he burglarized the home as well.  Hirman was convicted of the burglary charge.

Appellant appealed arguing that he could not be prosecuted for the burglary because he had already pleaded guilty in Dakota County to the receipt of the property that he had stolen from that burglary. Hirman acknowledged that stolen property from other owners and thefts was discovered during the Dakota County search, but maintained that he “wasn’t charged with those other items,” and was only charged with the receipt of the stolen property from the burglary. 

In a stolen property case like Hirman, the issue is whether behavior was that of a single incident.  The single behavioral incident analysis centers upon the question of whether the defendant was convicted of possessing stolen property at a single time from the same or distinct thefts and owners.  While it may happen that one should not be convicted for stealing and concealing the same item … it is acceptable to charge someone with either or both offenses and convict only one of them.  On the other hand, a defendant’s possession of stolen property from different owners at a single time does not preclude multiple prosecutions for the possession of that property. Thus, the threshold question in Hirman is whether Hirman pleaded guilty to receiving stolen property from the Washington County burglary, or to property from a different theft or owner.  The court ruled that Hirman pleaded guilty to receiving stolen property from the Washington County burglary and reversed his conviction based on double jeopardy.

State of Minnesota v. Gary Lee Johnson

PUBLISHED OPINION

Appellant was convicted of possession of child pornography.  The image at issue is a single photograph of a female naked from the waist up lying down on a bed.  The image was taken from a cell phone.  Although not established who actually took the photograph, appellant, the minor child’s step father, acknowledges that he transferred the image to his cell phone.

The issue in this case is if in the prosecution of a charge of possession of child pornography, does the term “sexual conduct” as used in Minn Stat. 617.246 subd. 1(e)(5), require proof that the depicted conduct is an act of apparent sexual stimulation or gratification or is the standard met by proof of sexual stimulation or gratification of the possessor of the depicted conduct?

Here the court must balance the compelling interest of safeguarding physical and psychological well-being of a minor with the First Amendment’s right to freedom of expression.

Following lengthy analysis the court of appeals reversed the conviction reasoning that the term “sexual conduct,” as used in Minn. Stat 617.246 subd. 1(e)(5), to define the offense of possessing child pornography, requires the physical contact depicted to be part of an apparent act of sexual stimulation or gratification, and this objective standard is not met by proof that the possessor or viewer of the depiction was sexually stimulated or gratified by the depiction.

Minnesota Criminal Caselaw Update for the Week of November 23 – 27, 2009

SUPREME COURT OF MINNESOTA

State of Minnesota  v. Pearson

Appellant Larry Demetrius Pearson challenged his conviction for first-degree murder and unlawful possession of a firearm.  In his appeal, Pearson raised the following issues:  (1) whether the trial court erred by admitting as rebuttal evidence a videotaped statement made by Pearson to a police officer; (2) whether the State committed misconduct; and (3) whether Pearson was denied his right to effective assistance of counsel.  The Supreme Court rejected the defendant’s arguments and found:

1. The trial court did not commit reversible error when it admitted as rebuttal evidence a partially redacted videotape of the defendant’s conversation with a police officer.  The videotape was the best evidence available for the jury to use in evaluating the defendant’s credibility.  Likewise, although the jury may have viewed Pearson in a negative light because of his language and demeanor on the videotape, the potential for unfair prejudice from the videotape did not outweigh the videotape’s probative value.

2. The State did not commit misconduct that prejudiced the defendant’s substantial rights. Pearson claimed that the State committed misconduct by, among other things, implying that the shooting stemmed from a robbery and by disparaging his theory of self-defense.  Viewing the State’s closing argument as a whole and given the evidence against Pearson, the Court concluded that any references to Pearson’s robbery convictions did not prejudice his substantial rights or constitute misconduct requiring a new trial.

 3. The defendant has not shown that his counsel’s representation rose to the level of ineffective assistance of counsel.  Pearson alleged that his trial counsel failed to fully pursue the suppression of the videotape, failed to properly redact the videotape, and failed to elicit information about the victim’s prior acts. The Court found that such decisions about evidence and objections are matters of trial strategy that the Court will not second-guess; therefore, Pearson’s ineffective assistance of counsel claim necessarily fails.

State of Minnesota  v. Riddley

Appellant Dontaro Riddley was convicted of first-degree premeditated murder and first-degree murder committed during the commission of an aggravated robbery.  The two murder victims were shot in an alley in Northeast Minneapolis – they had been forced to their knees, had their shoes and socks taken off, and were robbed.  That same evening, prior to the shooting, there was evidence that Riddley was involved in a similar robbery where the victim was forced to his knees, his shoes were removed, and he was robbed of his belongings.  On appeal, Ridley argued that the trial court improperly admitted evidence of the earlier robbery.  

Minnesota has long adhered to the common-law rule excluding evidence of prior bad acts except where the evidence fits within a specific exception.  Although other bad acts evidence is often probative, it also carries a great likelihood of inflaming passions and resulting in unfair prejudice to the defendant. One exception to exclusion of prior bad acts is for “immediate episode evidence”. Immediate episode evidence is admissible “where two or more offenses are linked together in point of time or circumstances so that one cannot be fully shown without proving the other.” 

In Riddley’s case, there was a close connection in terms of the time and location between the charged offenses and the earlier robbery.  The prior acts and the charged crimes took place within a short time of each other—no more than 15 minutes apart—and they occurred  around the same location—in alleys within one block of each other.  However, there was no evidence that the murders were motivated by the earlier robbery or that the murders were committed to conceal the earlier robbery. The Supreme Court held that since the earlier robbery and charged murders did not have this close causal connection, this prior bad act did not constitute immediate-episode evidence.

 Nonetheless, since Riddley failed to demonstrate that the prior bad act evidence significantly affected the verdict, the error was harmless and the conviction was upheld. 

 State of Minnesota v. Edwards

 Appellant Christopher Edwards was convicted of one count of first-degree assault and three counts of drive-by-shooting arising out of a shooting incident in which three individuals sustained gunshot injuries. The district court imposed concurrent sentences for the drive-by shooting convictions involving two of the victims and imposed a 190-month sentence for the assault conviction involving the other victim, which is a 30-month upward departure. Edwards appealed arguing that the district court abused its discretion in imposing the upward durational departure for the first-degree assault conviction.

 The Supreme Court held that when a defendant is convicted of several offenses involving multiple victims arising out of a single behavioral incident, a sentencing court may use “overlapping” facts of those offenses as the basis for an upward departure, provided that those facts show that the defendant committed the offense being sentenced in a particularly serious way.  In the context of multiple victims arising out of the same behavioral incident, a sentencing court must determine, on a victim-by-victim basis, (1) whether any facts show that the offense being sentenced has been committed in a particularly serious way, and (2) whether any sentencing principle prohibited the use of those facts to depart upward on the offense being sentenced.

COURT OF APPEALS OF THE STATE OF MINNESOTA

 State of Minnesota v. Betsy Lou Burkland

PUBLISHED OPINION

 In State of Minnesota v. Betsy Lou Burkland, the appellant appeals her conviction of prostitution asserting that the police officer who was investigating prostitution engaged in “outrageous government conduct” that violated her constitutional right to due process when the officer initiated sexual contact.  The court of appeals agreed and reversed the appellant’s conviction reasoning:

 The due process rights guaranteed by the United States and Minnesota constitutions protect individuals against abusive governmental action. Our constitution states, “The concept of fundamental fairness inherent in the due process requirement will prevent conviction of even a predisposed defendant if the conduct of the government in participating in or inducing the commission of the crime is sufficiently outrageous.”

 The due process issue has been challenged multiple times in the past arising out of prostitution related convictions.  For example, the court affirmed the conviction of Morris where the officer exposed himself to the prostitute at her demand in order to demonstrate that he was not a police officer before she would negotiate a price.  The officer did so but the court affirmed her conviction reasoning that the officer did so at her demand.  Here, in Burkland, the officer actually initiated the contact by fondling the prostitute and permitted the escalation of the sexual contact.  The court deemed that behavior “outrageous” and reversed Burkland’s conviction.

 State of Minnesota vs. James John Geng

UNPUBLISHED OPINION

 Appellant Geng claims prosecutorial misconduct and demands dismissal of his conviction of felony controlled substance crimes.  Appellant agreed to provide a proffer of evidence to law enforcement  in exchange for a plea agreement.  Ultimately the proffer was signed by appellant and he did indeed provide a recorded statement to detectives.  The prosecutor, however, declined to offer a plea agreement because the statement to detectives was “less forthcoming” than what it should have been. 

 After a review of the dialogue between defense counsel and the prosecutor as well as the language in the proffer form (standardized form written by the Attorney General’s Office) the court found that the prosecutor did not commit misconduct by failing to honor a promised plea agreement.  From a letter from the prosecutor to defense counsel:

 ”Should Mr. Geng cooperate with the proffer, I anticipate allowing Mr. Geng to plead guilty to a lesser charge.”

 Among other analysis of correspondence the court of appeals found the most critical language above and reasoned that “anticipating” a plea agreement is different from actually “agreeing.”

 State of Minnesota v. Michele Joy Therriault

UNPUBLISHED OPINION

 Appellant challenges her conviction for fifth-degree possession of methamphetamine, arguing that evidence should have been suppressed as the product of a warrantless search and was otherwise insufficient to convict her. Because the evidence was lawfully seized under the plain-view exception to the warrant requirement and was sufficient to uphold the conviction, the court affirmed.

 Appellant was a passenger in a vehicle stopped for a cracked windshield.  After the officer determined a warrant for appellant’s arrest, he asked her to step out of the vehicle.  As she did so, a small object fell to the ground.  As the officer bent over to retrieve it he noticed a cigarette pack in plain view on the floorboard.  From his training and experience the officer believed that a cigarette pack is commonly used to hide drugs.  The cigarette pack contained methamphetamine.

 Appellant was convicted under the well-settled plain view exception to a warrantless search.

Minnesota Criminal Case Law Update For Week of November 16-20, 2009

Court of Appeals of Minnesota.

STATE of Minnesota, Respondent, v. Jah D. CULP, Appellant.

(UNPUBLISHED OPINION)

 Appellant challenges the scope and duration of an investigatory stop asserting that the stop was impermissibly extended.  Appellant was a passenger in a vehicle that was parked in a private business parking lot at 5:00a.m.  The officer’s suspicion was aroused because the business was closed.  As officers questioned the driver he explained that he was fixing his car stereo.  Appellant argues that once the officers learned what he was doing, the reasonable suspicion of the parked vehicle dissipated making the subsequent detention unlawful.  Appellant further argues that the officers lacked individualized suspicion to detain him.  After a 45 minute detention, Appellant consented to a search of his person where officers found methamphetamine. 

In order to be reasonable under the Fourth Amendment an investigatory stop must be limited in scope and duration lasting only long enough to effectuate the purpose of the stop.  Although on its face a 45 minute detention of a passenger of a suspicious vehicle seems extensive, appellants argument was complicated by the fact that items such as loose ammunition and a can of butane fuel were in plain view of the officers.  As an occupant of the vehicle appellant was said to have constructive possession of the suspicious items.  The Court of Appeals affirmed the conviction.

Court of Appeals of Minnesota.

STATE of Minnesota, Respondent, v. Hunter Jay PARKER, Appellant.

 UNPUBLISHED OPINION

 In State of Minnesota vs. Parker, Appellant challenges his 1^st degree refusal to submit to testing, 1^st degree driving while impaired and gross misdemeanor driving after cancellation.  Appellant claims that the district court abused its discretion by allowing evidence of an unspecified prior felony conviction for impeachment purposes.  The Court of Appeals agreed, reversed and remanded for a new trial.

A district court must apply the Jones factors when determining whether to admit prior convictions as impeachment evidence; those factors include: (1) The impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.

Because appellant claimed that he was not driving the vehicle, his credibility was a central issue in the case.  The court reasoned, therefore, that the district court improperly allowed appellant’s unspecified felony conviction to be used for impeachment purposes.

 Court of Appeals of Minnesota.

STATE of Minnesota, Respondent, v. Nichole Marjorie ATHA, Appellant.

 UNPUBLISHED OPINION

Appellant challenges her conviction of 2^nd degree DWI asserting that the district court failed to include a jury instruction on the defense of necessity.  After drinking alcohol in a bar, appellant returned to her cousin’s house with her fiancé and children to stay the night.  An argument about an incident that occurred earlier in the bar erupted.  A beer bottle was thrown at appellant.  Fearing for her safety as well as that of her fiancé and children, she fled the house in her vehicle and drove to a gas station located approximately one block away to call 911.  Appellant returned to the house and then back again to the gas station where officers had arrived after responding to her 911 call.

The necessity defense “applies only in emergency situations where the peril is instant, overwhelming, and leaves no alternative but the conduct in question.” To prove the necessity defense, the defendant must show that (1) she had no legal alternative to breaking the law, (2) the harm to be prevented was imminent, and (3) a direct, causal connection existed between breaking the law and preventing the harm. 

Here, the court rules that the district court did not abuse its discretion by not instructing the jury on the defense of necessity.

Court of Appeals of Minnesota.

John Thomas KURHAJETZ, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.

 UNPUBLISHED OPINION

Appellant argues that law enforcement did not have reasonable articulable suspicion to justify the stop of his vehicle which subsequently resulted in a DWI conviction.  Appellant was driving his pick-up truck on County Road 43.  Appellant approached a T-intersection where drivers can either make a right hand turn after coming to a complete stop or continue left by utilizing a curved road that cuts the intersection.  Appellant, rather, turned off of CR 43 onto a dirt path that runs parallel to the curve road.  No signs prohibit drivers from using the dirt path as a shortcut.  A trooper observed appellant drive down a steep grade onto the dirt path and subsequently initiated a stop of the vehicle.

Appellant asserts that because driving on the dirt path did not violate traffic laws, the trooper did not have an objective basis to stop his vehicle. 

Appellant argues that his actions were lawful because he was driving on a roadway as defined by Minn St 169.01 subd. 31 (2006). The court reasoned that the proper analysis is whether appellant violated 84.804 by driving on the dirt path. According to 84.804 a person may not operate a vehicle off-road within a public road right-of-way except on a trail designated by the Commissioner of the Department of Natural Resources (DNR). A “[p]ublic road right-of-way” encompasses the “entire right-of-way of a roadway that is not privately owned, including the traveled portions, banks, ditches, shoulders, and medians.

Therefore, appellant’s act of driving on the path located in the right-of-way violated 84.804 subdivision 1, and provided reasonable articulable suspicion of criminal activity.

 State of Minnesota, Respondent, v. Michael Ross Winter, Appellant.

 UNPUBLISHED OPINION

 Appellant was sentenced to 74 months in prison for possession of methamphetamine.  Appellant’s appeal challenges the probable cause for the stop arguing that the officer who stopped the vehicle did not personally observe any suspected criminal activity.  The court affirmed, however, stating that an officer’s personal knowledge is only one factor that may be considered in viewing the totality of the circumstances. The factual basis for an investigatory stop “need not arise from the personal observations of the police officer but may be derived from information acquired from another person.”

Here, a reliable informant acting with law enforcement informed officers that appellant would be involved in an exchange of methamphetamine prior to appellant’s arrest.  In fact, the informant described the exact location of where the exchange would take place, the type of vehicle involved, locations of alternate stops that would be made along the way and where the drugs would be located.

Just prior to the arrest, undercover officers located the appellant and began surveillance.  The vehicle was the same make and model as described by the informant.  Furthermore the vehicle re-traced the route that the informant had described including the location where the exchange would take place.  The undercover officers terminated surveillance and called for a marked squad car to initiate a stop of the vehicle.

Although the officer in the marked squad car did not personally observe and criminal activity, the stop of appellants vehicle was valid.  “The grounds for making a stop can be based on the collective knowledge of all investigating officers.”

Court of Appeals of Minnesota.

STATE of Minnesota, Respondent, v. Michael Charles McCALIP, Appellant. 

UNPUBLISHED OPINION

 Appellant challenges his conviction of DWI on the basis that his vehicle was unconstitutionally stopped and seized.  Here, appellant voluntarily pulled his vehicle to the side of the road after observing an oncoming squad car make a u-turn.  After Appellant legally stopped his vehicle on the side of the road, the squad car pulled in behind and activated his emergency lights.

 The court affirmed appellant’s conviction reasoning that activation of the squad lights did not constitute a seizure.  The court relies on State v. Hanson, 501 N.W. 2d 677:

 ”The supreme court stated that a reasonable person would think that the officer was merely stopping “to see what was going on and to offer help if needed.” The court concluded that because it was dark and because both cars were on the shoulder of the highway far from any town, a reasonable person would know that the emergency lights were simply to warn other drivers that parked cars and persons were on the shoulder of the road. Id. The holding in Hanson also underscored that the seizure test focuses on the mindset of a reasonable person in the defendant’s position and not the officer’s mindset. There, the supreme court found no seizure, id., despite the officer’s testimony that his purpose in activating his emergency lights was to tell the defendant that he could not leave.

Federal Judge to Minnesota Drivers: For Justice Go to Kentucky

In a highly anticipated decision, U.S. District Court Judge Donovan Frank today approved the settlement between the State of Minnesota and CMI concerning the source code to the Intoxilyzer 500o. This sweetheart deal forces Minnesota drivers to travel to CMI headquarters in Owensboro, Kentucky in order to meaningfully analyze the machine accusing them of a crime. Not only that, but the analysis must be done under the watchful eye of CMI representatives who will undoubtedly attempt to affect the results and corresponding report! Minnesota Judges are not bound by this decision, however, and we have hope that some may see this settlement as the scam that it is.

Federal Court to Decide on Source Code Issue Within 30 Days

On Friday, June 19, a hearing was held in Federal Court to determine whether the Court will accept the tentative settlement between CMI (the maker of the Intoxilyzer 5000EN) and the State of Minnesota. The settlement calls for CMI to provide a copy of the source code in electronic form for inspection at its offices in Owensboro, Kentucky. Paper copies (useless) will be available to litigants in Minnesota. No electronic copies of the source code will be available in Minnesota. At the hearing, attorneys representing Minnesota drivers argued that this settlement was inadequate since it required Minnesota drivers to travel to Kentucky to have the source code analyzed. After the hearing, U.S. Federal District Court Judge Donovan Frank informed the parties that he would rule as to whether to accept the proposed settlement within 30 days. Hopefully Judge Frank will see this settlement for what it is:  a smokescreen clearly designed to place undue burdens on Minnesota drivers who have been given access to the source code by Minnesota courts.

Court of Appeals Again Reverses Trial Court; Federal Court Agreement?

Today in State v. Crane, the Court of Appeals finally put to rest the state’s argument that it does not have possession and control over the source code to the Intoxilyzer 5000 breath testing machine. The court held that the Supreme Court’s rulings in Brunner and Underdahl II are the final word on the subject and any trial court judge who disagrees will be reversed.

The emphasis of the source code battle now shifts to federal court and the State of Minnesota’s lawsuit against the manufacturer of the Intoxilyzer 5000, CMI of Kentucky. Yesterday, it was announced that the two parties have reached a settlement in which the source code would be provided to drivers in some form or another. As in most anything, though, the devil is in the details. Early reports indicate that the code may only be examined in Owensboro, Kentucky and even there only a portion of the code will be provided. Yet again, it seems as though the State is more interested in keeping the source code hidden in the hills of Kentucky than giving drivers a meaningful opportunity to inspect and anylize a machine that is used to put people in prison. It may be a sign of the inadequacy of the settlement that the attorneys representing Minnesota drivers were not present during the settlement negotiations. The agreement must still be approved by Federal District Court Judge Donovan Frank.