Criminal
Law
Judicial Law
Fifth Amendment: Probation Revocation; Sex Offender
Treatment; Failure to Admit. The felon was convicted
of second-degree criminal sexual conduct after a trial by stipulated
facts. As part of his probation, he was ordered to Alpha Human
Services for sex offender assessment. He was deemed nonamenable
to the treatment program because he denied all the allegations
of sex abuse contained in the complaint. The felon also denied
his conduct to the court psychologist and the probation officer.
At sentencing, the trial court stayed execution of a 20-month
prison sentence and placed him on probation. The court specifically
stated that if the appellant denied the offense for treatment
purposes, it would be considered a failure to participate in
treatment and the court would revoke probation. Approximately
one month after sentencing, the appellant retained an appellate
attorney and began the appellate process. Appellate counsel advised
respondent that he should participate in treatment in all respects,
except that he should assert his Fifth Amendment privilege against
self-incrimination and not discuss the facts underlying his conviction
while his appeal was pending.
When the appellant reappeared at the treatment center, he
again refused to discuss the offense, this time stating that
it was on advice of counsel because of the appeal. This was deemed
to be a refusal to participate, and the trial court subsequently
revoked probation and executed the sentence.
Held, it was a denial of the appellant’s Fifth Amendment
right to be free from self-incrimination when the trial court
judge revoked probation for failing to admit, for treatment purposes,
the facts underlying his conviction that was being appealed.
In this case of first impression, the court holds that revocation
of probation is a penalty that cannot be imposed for invoking
the Fifth Amendment privilege against self-incrimination while
the conviction is on appeal. The trial court abused its discretion
when it revoked probation and executed the prison sentence. The
order revoking probation is reversed and the trial court is required
to delete from the probation order the requirement that the appellant
admit the facts underlying the conviction that he is presently
appealing. State v. Kaquatosh, 600 N.W.2d 153 (Minn. App.
9/28/99).
Firearms: Paintball Gun; Drive-by Shooting; Felon in
Possession; Dangerous Weapon. A paintball gun is held
not to constitute a firearm in a prosecution for a drive-by shooting
under Minn. Stat. §609.66, subd. 1e(a), and the Felon in
Possession of Firearms statute, Minn. Stat. §609.165, subd.
1b(a), and Minn. Stat. §624.713, subd. 1b. Additionally,
it is not to be considered a dangerous weapon, under these circumstances,
for the purposes of a prosecution of second-degree assault --
defined as assault with a dangerous weapon.
The appellant had purchased a paintball gun and drove around
town, shooting the gun out the window. The gun was a .68 caliber
CO2 pump-action firearm. He hit a pedestrian
in the face, causing her cheek to be swollen and scratched but
not requiring medical attention. Paint spattered on her cheek,
hair, and coat.
Although previous case law held that a CO2-powered
BB pistol qualified as a firearm, the court in this case notes
that the definition of "firearm" remains undefined
in the statutes. Attention must be paid not only to the propellant
used -- in this case CO2 -- but also to
the purpose of the projectile the gun is designed to discharge.
BB guns shoot projectiles that are designed to pierce or harm
objects, whether inanimate or living. A paintball gun is not
intended or designed to cause any harm at all.
Under the facts of this case, the paintball gun did not constitute
a dangerous weapon for purposes of second-degree assault because
it was used in a "reckless" manner, rather than in
a manner calculated to cause great bodily harm. The evidence
on the record indicates that the appellant merely intended to
splash the unsuspecting target with washable paint, and he did
so. Had the appellant intentionally shot into the face of the
victim or otherwise used the gun in an intentionally dangerous
manner, the outcome would have been different. State v. Coauette,
601 N.W.2d 443 (Minn. App. 9/28/99).
Search and Seizure: Protective Frisk; Minor Traffic
Violation; Bicycle. The appellant was stopped after riding
a bicycle through a stop sign, turning the wrong way down a one-way
street, and nearly colliding with a squad car. After detaining
the appellant to ticket him for running the stop sign, the police
officer noted that the appellant seemed nervous, was looking
around as if to find an escape route, and had no identification.
The officers then decided to place the appellant in a squad car.
Before doing so, the police officer frisked the appellant,
at which time the appellant flailed his arms and yelled that
he did not want the officers to beat him. The officers then put
the appellant in a bear hug to subdue him, at which time a gun
from the appellant’s waistband was tossed to the ground.
Held, the gun should be suppressed. A frisk is improper during
a routine stop or a minor traffic violation absent additional
suspicious or threatening circumstances. State v. Varanado,
582 N.W.2d 886, 890 (Minn. 1998). There were not ample circumstances
to justify a protective search. Being nervous is not, by itself,
a sufficient reason. The lack of identification is not a sufficient
reason, especially under these circumstances where the appellant
was a juvenile riding a bicycle who was not required by law to
have a license or other identification with him.
The state attempted to justify the search because the possibility
of flight could constitute a "further criminal act."
This rationale will not support the search because it could then
justify the police in detaining anyone stopped for a minor traffic
offense. The court also rejected the position of the state that
there was a "legal basis" for the decision to place
the appellant in the squad car, because there was not a reasonable
suspicion that the appellant was dangerous or posing a threat
to the officer. A decision to place a traffic violator in the
back of a patrol car does not, by itself, create a reasonable,
articulable suspicion to justify a pat-down search under circumstances
that would not otherwise allow it. In re the Welfare of M.D.B.,
601 N.W.2d 214 (Minn. App. 10/5/99).
Search and Seizure: No-Knock; Drugs; Weapons.
The appellant was an overnight guest at the home of the target,
staying for an indefinite period. The affidavit contained the
typical boilerplate language that "those involved with controlled
substance often attempt to destroy those substances," in
order to justify a no-knock entry.
The application, however, went beyond that by stating that
drugs had been removed from the residence approximately three
months earlier, and that firearms had been present at the premises
in the recent past. This was held to be sufficient to justify
a no-knock entry, and it survived the reasonableness requirement
of Richards v. Wisconsin, 520 U.S. 385 (1987). State
v. Wasson, 602 N.W.2d 247 (Minn. App. 11/23/99).
Search and Seizure: Weapons; Pat Search; Pocket.
The respondent was stopped when he made an abrupt left turn from
the right lane without signaling. When he was asked to exit the
vehicle, one of the officers held him by the back of the jacket
to prevent him from running. At this point, the respondent stuck
his arms straight out, which the police thought was unusual.
The respondent then started to reach for his outside left coat
pocket, at which point another officer grabbed the arm and placed
it forcibly back on the squad car. Fearing that the respondent
had a weapon, an officer then placed his hand into the pocket
and immediately recognized a large quantity of crack cocaine.
The respondent was placed under arrest.
Held, the search of the pocket was unreasonable. In a pat
search for weapons where an articulable suspicion exists, an
officer may conduct a pat down of the outer clothing. This outer
clothing search was not done. Once the danger passed that the
respondent was reaching for a weapon, the officer was not justified
in reaching into the pocket without first patting down the outer
clothing.
The search was not valid incident to an arrest. Although police
may arrest people for in-presence misdemeanors, Rule 6.01 of
the Rules of Criminal Procedure requires (1) prevention of harm
to the accused or prevention of further criminal conduct; or
(2) that there is a substantial likelihood that the accused will
fail to respond to a citation. Neither existed in this case.
State v. Cortez Richmond, 602 N.W.2d 647 (Minn. App. 11/23/99).
DWI/Implied Consent; Temporary License; 30-Day Waiting
Period; Constitutionality. Minn. Stat. §171.30,
subd. 2c, does not violate constitutional due process by requiring
a 30-day waiting period before an application for a limited driver’s
license. This statute doubles the normal 15-day waiting period
for those first-time offenders who test .20 percent alcohol concentration
or higher.
The court notes that blood tests have been found to be reliable,
and there is very little risk that an officer will intentionally
falsify a implied consent revocation. Even though a limited license
is not immediately available, which was a concern in Heddan
v. Dirkswager, 336 N.W.2d 54 (Minn. 1983), those constitutional
concerns are tempered by the decision of the Supreme Court in
Mackey v. Montrym, 443 U.S. 1 (1979), which concludes
that prehearing driver license revocation is constitutional,
even though there are no provisions for a limited license.
Hamilton v. Commissioner of Pub. Safety, 600 N.W.2d 720
(Minn. 10/21/99).
DWI/Implied Consent: License Revocation; Withdrawal
of Plea; Collateral Consequence. While represented by
counsel, appellant pled guilty to one gross misdemeanor count
of DWI. The reading was .09 percent in alcohol concentration,
and appellant had two prior DWI convictions. As a result of the
conviction, his license was revoked. The trial court denied the
motion to vacate the guilty plea on the basis that he was not
informed that his driver’s license could be revoked.
Held, the revocation of driving privileges does not constitute
a manifest injustice so as to justify withdrawal of a guilty
plea. It is a collateral consequence, not a direct consequence.
The only effects that a defendant needs to understand when entering
a guilty plea are these two direct consequences: maximum sentence
and fine. State v. Washburn, 602 N.W.2d 244 (Minn. App.
11/9/99).
DWI/Implied Consent: Additional Test; Telephone Access.
The appellant was arrested by the Mound Police for driving while
intoxicated. Prior to taking a breath test, he spoke with an
attorney for approximately 22 minutes. After taking the test,
he was transported to the Adult Detention Center in downtown
Minneapolis. Deputies honored his request to use the telephone
to arrange for additional testing but did not allow him to receive
incoming calls. He was unable to speak with his attorney directly,
but only with an answering service.
Held, the appellant’s right to additional testing was
vindicated even though he was not allowed to receive incoming
calls while in jail. Cosky v. Commissioner of Pub. Safety,
602 N.W.2d 892 (Minn. App. 11/30/99).
Evidence: Spreigl; JIG Instruction. Over
the objection of the appellant, the trial court admitted one
of three Spreigl incidents. The appellant was charged
with digital penetration of C.B. during a sleepover. A couple
of years earlier, during a similar sleepover, A.G. was digitally
penetrated by the appellant as well, and the judge allowed this
testimony to be introduced.
The general Spreigl rule states that evidence of other
crimes or bad acts is not admissible to prove that the individual
acted in conformity, thereby committing the charged offense.
Minn. Rule Evid. 404(a). The instruction in Crim. JIG 2.01 and
3.16, on the other hand, states that Spreigl is admitted
"for the limited purpose of assisting you in determining
whether the defendant committed the crime with which he is charged
in the complaint . . .." In spite of this seeming contradiction
of purposes surrounding admissibility, the trial court did not
abuse its discretion in using these JIGs. Sanderson v. State,
601 N.W.2d 219 (Minn. App. 10/29/99). The dissent in this case
would reject the JIGs with preference to Devitt and Blackmars'
Federal Jury Instruction 17.08 and reverse the conviction and
grant a new trial.
Evidence: Lack of Proof. The respondent
was charged with first-degree criminal sexual conduct for digital
penetration of an eight-year-old stepchild. Several weeks later,
when the abuse was reported, the victim stated that nothing like
this had happened to her before. Approximately two years later,
while the victim was being reinterviewed, she stated that she
had been touched in the same manner approximately six months
before the reported incident.
Held, the trial court was within its discretion to exclude
the earlier Spreigl conduct on the basis that the state
had not established it by clear and convincing evidence. The
district court also concluded that this contested Spreigl
evidence could possibly taint the jury and cause them to punish
the respondent for a crime with which he was not charged.
Held, the suppression of the Spreigl evidence was appropriate
and is entitled to a high degree of deference on appellate review.
It was not clear and unequivocal error, which is the standard
of review. Secondly, the state has not shown that suppression
has a critical impact on its case. The case in chief has not
been damaged. State v. Reckinger, 1999 WL 1101250, (Minn.
App. 11/30/99).
Sentence: Firearm; Enhancement; Preponderance of the
Evidence. Appellant was charged with two counts of burglary.
He was found guilty of entering an occupied dwelling, but not
guilty of possessing or using a dangerous weapon at the time
of the burglary. There was uncontested testimony that the appellant
did bring both a pistol and rifle to the site of the burglary,
but that he did not actively use them; in fact, he left one on
the floor and surrendered another to a neighbor.
The presumptive sentence was 26 months, but the district court
applied Minn. Stat. §609.11, subd. 5, and imposed and executed
36 months because the appellant had in his possession or used
firearms at the time of the offense.
Held, the trial court did not err as a matter of law in enhancing
the sentence by using a preponderance-of-the-evidence standard.
The law is clear that it is the court, not the jury, that determines
whether a defendant had a dangerous weapon at the time of committing
any offense. The court rejects proof beyond a reasonable doubt
as the appropriate standard for determining a gun issue under
§609.11. State v. Hannam, 601 N.W.2d 454 (Minn. App.
10/19/99).
Sentence: Hernandez; Separate Victims.
The defendant had pled guilty to one charge of first-degree criminal
sexual conduct involving K.E.T. and had also tendered an Alford
plea to a second charge of first-degree criminal sexual conduct
involving A.M.H. The court had, on its own initiative, indicated
that it would consider such an Alford plea, and that the
sentence would be 86 months, concurrent with the first charge.
The prosecutor objected and appealed the sentence.
Held, it was an abuse of discretion for the judge to sentence
in this way, without taking into consideration all the available
facts relating to the A.M.H. conviction. This was a downward
departure -- the presumptive sentence on the A.M.H. conviction
was an executed term of 110 months -- which did not have independent
support other than from the district court to fulfill the "agreement"
that he had made with the appellant and his attorneys. The case
is remanded for trial, with an allowance to the appellant for
withdrawal of his guilty plea. State v. Schmit, 601 N.W.2d
896 (Minn. 10/28/99).
Procedure: Continuance for Dismissal; Immigration.
The respondent was charged with soliciting a prostitute, a misdemeanor
violation. At pretrial, counsel for the respondent informed the
judge that the respondent would be deported if he were convicted
and requested a stay of adjudication or a continuance for dismissal.
Over the objection of the prosecutor, the court continued the
matter one year for dismissal upon the condition that there be
no new solicitation violations and payment of $100 for costs
of prosecution.
The Court of Appeals reversed, stating that a continuance
for dismissal and a stay of adjudication are functionally equivalent,
and hence, appealable as a pretrial order. The court holds that
the district court has the inherent power to continue a case
for dismissal, over the objections of the prosecutor, but only
in cases involving special circumstances. Here, there is no injustice
flowing from abuse by the prosecutor of its charging function.
The possible deportation consequences do not justify special
circumstances. State v. Bhawesh Prabhudail, 602 NW 2d
413 (Minn. App. 1999).
Tribal Jurisdiction: Enrollment in Different Tribe.
The appellant was charged with speeding on a Chippewa reservation.
The appellant is not enrolled in the Minnesota Chippewa tribe,
but instead is enrolled in a Wisconsin Potawatomi community.
Held, the state does not have subject jurisdiction over these
types of civil/regulatory offenses, because they are committed
by Indians in Indian country. The law does not differentiate
between tribes. State v. R.M.H., 602 N.W.2d 411 (Minn.
App. 11/16/99).
Forfeiture: DWI; Double Jeopardy; Excessive Fines.
Charged with his third DWI in five years, the respondent was
required to forfeit his 1997 Jeep. The record did not contain
a precise valuation of the vehicle. The state estimated that
its sale would bring between $8,000 and $9,000, even after subtracting
a $12,000 encumbrance and approximately $900 in costs to the
state. The respondent contended, with no factual support, that
the sale of the vehicle could result in a deficiency to him of
approximately $4,000.
Held, the DWI Vehicle Forfeiture law does not violate the
Double Jeopardy, Excessive Fines, or the Equal Protection clauses
of the state and federal constitutions.
With respect to Double Jeopardy, seizing a vehicle serves
the important nonpunitive remedial goal of enhancing public safety
by removing repeat intoxicated drivers from their instrumentality.
Next, even though a civil forfeiture may have both remedial
and punitive effects, whether it violates the Excessive Fine
clause is a separate question. The Minnesota Supreme Court appears
to follow the "gross disproportionality" test announced
by the United Supreme Court in U.S. v. Bajakajian, 524
U.S. 321 (1998). In the Lukkason decision, 590 N.W.2d
803 (Minn. App. 1999), the Court of Appeals found that a loss
of $11,500 was not grossly disproportionate to the gravity of
a third DWI offense in five years. Hence, in this case, the much
smaller potential financial loss suffered by the respondent will
not be found to be excessive.
Third, there is no Equal Protection violation. The statute
does not involve a suspect classification, and hence, need only
be rationally related to a legitimate government purpose. The
fact that different individuals suffer different losses, depending
upon how much equity they own in a vehicle, is not an Equal Protection
violation, because seizing the vehicle is rationally related
to the state remedial purpose of removing drunk drivers from
the road. Hawes v. 1997 Jeep Wrangler, 602 N.W.2d 874
(Minn. App. 11/23/99). |
