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In this month's "Notes & Trends":
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Criminal
Law
Judicial Law
DWI/Implied Consent: Expert Testimony; Limitation; Widmark.
This case affirms the Court of Appeals, which affirmed the trial
court order excluding defense expert testimony concerning the
Widmark formula. In a letter to the court, defense counsel
stated that the expert would testify as to "anomalous situations
that might affect the accuracy and reliability of the Intoxilyzer"
and to the effect of "alcohol consumption on the result
of the breath test, and upon the human body," as well as
the Widmark formula. There was no specific information
concerning the methodology the expert would employ in forming
his opinions.
The trial court held that to testify on possible theories
of malfunctions would be speculation and prejudicial. Following
this ruling, the case was tried on stipulated facts, resulting
in a conviction.
The court did not abuse its discretion in excluding the expert
testimony of the defendant with respect to alcohol metabolism
issues and malfunctions of the Intoxilyzer. The admissibility
of expert witness testimony has generally rested in the discretion
of the district court, State v. Greenleaf, 591 N.W.2d
488, 504 (Minn. 1999). Minnesota Rule of Evidence 702 governs
the admissibility of scientific evidence and requires the testimony
to assist the trier of fact to understand the evidence. The critical
defect here is that the record lacks an offer of proof by the
defendant as to what expert testimony the defendant intended
to introduce. Regarding Rule of Evidence 103(a)(2), trial error
may not be predicated on an exclusionary ruling unless there
is an offer of proof made or the substance of the evidence is
apparent from the context of the questioning. On the face of
the record, the ruling does little more than to state that expert
testimony cannot be based on mere speculation. The record has
no offer of proof or other evidence showing the information necessary
to conduct retrograde blood alcohol calculations, including:
1) when the defendant first consumed alcohol; 2) the number of
drinks; 3) the type of alcohol; or 4) height and weight. State
v. Wolf, 605 N.W.2d 381 (Minn. 1/27/00).
DWI/Implied Consent: Venue; Multi-County City.
The appellant was arrested for DWI behavior that took place completely
in a section of St. Cloud that is entirely within Benton County.
St. Cloud has territory in three counties: Stearns, Benton, and
Sherburne. The city hall is located in Stearns County. The defendant
objected that the trial was held in Stearns County, not Benton
County, because Article I, Section 6 of the Minnesota Constitution
states that in all criminal prosecutions, a trial shall be "by
an impartial jury of the county or district wherein the crime
shall have been committed …." Both Benton and Stearns
counties are located in the 7th Judicial District. Therefore,
the constitutional issue is satisfied because Article I, Section
6, disjunctively allows the trial to be in the county or district.
It should be noted that Minn. Stat §487.21, subd. 4,
provides that venue for crimes committed within a municipality
located in more than one county is to be in the county where
the city hall is located. The St. Cloud city hall is located
in Stearns County. However, Minnesota Rule of Criminal Procedure
24.01 provides that the trial shall be in the county where the
offense was committed. Therefore, there is a conflict between
the statute and the rule. However, because of the special needs
for multi-country municipalities, the Supreme Court in this case
holds, as a matter of "comity," that the statute may
be applied notwithstanding its conflict with the Rule of Criminal
Procedure. State v. Wolf, 605 N.W.2d 381 (Minn. 1/27/00).
DWI/Implied Consent: Boating While Intoxicated; Water
Patrol "Special Deputies;" Probable Cause; Investigative
Stops. Special deputies of the Hennepin County Water
Patrol are volunteers and are nonlicensed police officers. They
use patrol boats marked as "Sheriff," which are equipped
with emergency lights and siren.
Two special deputies saw a jet ski violating the quiet waters
ordinance on Lake Minnetonka by traveling at least 30 miles per
hour in Grays Bay. The respondent was not wearing protective
eyewear. After pulling over the jet ski, one deputy observed
that the respondent had an odor of alcohol on his breath. Both
deputies believed that his speech was slurred. Based on those
observations, they ordered the respondent to board the patrol
boat, after which they performed a series of field sobriety tests.
After the tests were performed, the respondent was arrested for
BUI.
Held, this was an invalid arrest, and evidence obtained after
the respondent was ordered to board the patrol boat must be suppressed.
Minn. Stat. §629.30, subd. 2, allows private citizens to
make an arrest; however, there must be probable cause for any
public offense committed. In this case, the special deputies
did have the authority to make an arrest for the quiet waters
violation, which was committed in their presence, but did not
have continuing authority to make an "investigative stop."
For events that these deputies witnessed, they could not determine
that there was probable cause to believe the respondent had committed
BUI. One deputy testified that prior to the field sobriety tests,
they did not have probable cause to arrest for BUI and the only
indicia were red eyes, somewhat slurred speech, and the odor
of alcohol. Given the weather conditions and the lack of eyewear,
these signs have reduced probative value concerning intoxication.
The deputies concluded that the respondent was intoxicated only
after they had conducted the field tests. Because they had no
authority to detain the respondent to conduct these tests, they
could not rely on those test results to determine whether there
was probable cause. Hence, the BUI charge was properly dismissed
by the trial court. State v. Horner, 605 N.W.2d 405 (Minn.
App. 1/25/00).
Evidence: Spreigl; Eyewitness. This case seems
to say that Spreigl evidence should be admitted only in
cases where evidence of the defendant’s identity is otherwise
weak or inadequate, which it apparently was here. State v.
Robinson, 604 N.W.2d 355 (Minn. 1/13/00).
Theft: Security Deposit; Automobile Lease. The
appellant willfully commingled and failed to repay security deposits
for automobile leases. He was undergoing heavy financial difficulties
and used these security deposits to help fund a business. He
was prosecuted under Minn. Stat. §609.52 for permanent and
temporary taking. At issue was whether the security deposits
were "the property of another," to fit the definition
of §609.52, subd. 1(a).
Held, automobile security deposits are not the property of
another. In order to prosecute for theft of advance payments
of money, the state must establish a fiduciary relationship.
The Supreme Court considered the debtor/creditor model, the pledger/pledgee
relationship, and the settler/trustee relationship before joining
the majority of states in defining the lessor/lessee security
deposit relationship as one of debtor to creditor. As such, there
is no fiduciary relationship. In fact, security deposits are
typically held "for the benefit of the lessor because it
protects the lessor’s vulnerability under the lease."
Hence, a prosecution for theft of a security deposit will not
lie under these circumstances. State v. Larson, 605 N.W.2d
706 (Minn. 2/3/00).
Theft: Sales Tax; Failure to Pay; Public Funds; Prosecution.
The appellant was prosecuted under Minn. Stat §609.445,
which criminalizes the nonpayment of money received on behalf
of the state. The prosecution did not charge the appellant under
Minn. Stat. §289A.63, which specifically criminalizes, as
either felonies or gross misdemeanors, the nonpayment of taxes
by those who are required to collect and pay. Historically, Minn.
Stat. §609.445 had been used exclusively for public officials.
At the time that law was passed in its original form, sales tax
did not exist in Minnesota. Hence, the prosecution under Minn.
Stat. §609.445 did not cover the appellant’s behavior
in this case, which more correctly was a prosecution for failure
to pay sales tax. State v. Larson, 605 N.W.2d 706 (Minn.
2/3/00).
Trial Procedures: Closure of Courtroom; Juvenile Witness;
Criminal Sexual Conduct. As part of the prosecution for
first- and third-degree criminal sexual conduct, the prosecution
requested that the courtroom be closed during the testimony of
two 14-year-old witnesses, including the victim. The defense
did not oppose the request. Although Minn. Stat. §631.045
allows the judge to exclude the public from the courtroom during
a juvenile crime victim’s testimony, specific reasons and
findings must be made in the record to support the need for closure.
Public trials are of constitutional dimension. On this record,
the closure was improper. However, the defendant effectively
waived any objection by consenting to the closure. State v.
Qasim Adbi Bashire, 2000 WL 108875 (Minn. App. 2/1/00).
Search and Seizure: Automobile; Bumper Search; Informant.
Police observed a maroon-colored vehicle traveling at a high
rate of speed. Four to six weeks earlier, an unidentified informant
had told the officer that he had observed the appellant driving
a maroon car, that this car was being used to transport large
amounts of crack cocaine, that the cocaine was in the bumper
of the vehicle, and that it was an older model. The officer described
the informant as "reliable," but did not identify the
informant or elaborate further on the basis of his knowledge.
When the maroon car failed to signal a turn, it was pulled
over. The passenger was not wearing a seatbelt and had been convicted
of narcotics violations and a stolen handgun. The passenger repeatedly
looked over his shoulder at the police officer. When back-up
arrived, the officer had both occupants exit the vehicle. Following
a protective weapons search, a police officer looked at the underside
of the bumper and noted an object wrapped in white toilet paper
in a groove, which he determined, using a flashlight, was a baggie
containing crack cocaine.
Held, there was adequate probable cause for the search. The
informant had supplied the name of the appellant, the color and
model description of the vehicle, and the unique location of
the narcotics. These facts, combined with a valid traffic stop,
a nervous convicted drug felon passenger, and specific information
about the narcotics, all added up to adequate probable cause
for the search. State v. Demry, 605 N.W.2d 106 (Minn.
App. 2/1/00). |
By Frederic Bruno
Frederic Bruno &
Associates |
