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In this month's "Notes & Trends":
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Criminal
Law
Post Conviction: Relief: Brady Violation.
Appellant was charged with second-degree felony murder and first-degree
manslaughter as a result of a bar fight. At trial, appellant
claimed self-defense, stating that the victim, who was boasting
that he had just spent 18 years in prison for a double murder,
was threatening appellant with what appellant believed a gun
or other weapon. During a subsequent investigation, it was uncovered
that the victim had an alias, and had two prior convictions in
Missouri for murder. In addition, St.Paul police reports indicated
that in the months immediately preceding his death, the victim
had been arrested or cited for various crimes including assault,
drugs, and DWI. This information was prepared by one of the investigating
officers in the case against the appellant. The investigator
also discovered a memo from a probation officer to a Ramsey County
judge less than two weeks after the death, confirming that the
victim had been on probation.
Held, the appellant is entitled to an evidentiary hearing in
support of his petition for post-conviction relief asserting
newly discovered evidence and a Brady violation. The Court
of Appeals follows a Brady analysis, more lenient than
the newly discovered evidence analysis, because the information
was clearly favorable to the defense and had been withheld by
the state either willfully or inadvertently. Michael Gorman
v. State of Minnesota, ___ N.W.2d ___ (Minn. App.) 12/19/00.
Conditional Release: Hearing: Double Jeopardy.
A defendant¹s sentence may be subsequently amended, without
hearing, to include a conditional release term for sexual offenders,
as mandated by Minn. Stat. § 609.346, subd. 5(a) (1996).
This is allowable even where the gap between the original sentence
and the modification is three years. There is no violation of
the appellant¹s double jeopardy or due process rights. State
v. Thomas Wayne Calmes, ___ N.W.2d ___ (Minn. App.) 12/19/00.
Conditional Release: Plea Bargain. Appellant pleaded
guilty to first-degree criminal sexual conduct, in a plea agreement
which contained a number of contingent recommendations to the
court. These agreements contemplated a maximum possible sentence
of 172 months in prison, a double durational departure. The original
sentence imposed a stay of execution of 172 months, a dispositional
departure, and probation. The mandatory conditional release term
was not mentioned at that time. Five years later, after a probation
violation, the court for the first time mentioned the mandatory
conditional release term, which it then imposed in addition to
the 172 month sentence.
Held, the sentence is reversed, and on remand, the court must
either allow the appellant to withdraw his plea or modify his
sentence so that the maximum period of incarceration, including
the period of conditional release, does not exceed the 172-month
upper limit to which the appellant originally agreed. Although
the agreement originally called for a "joint recommendation,"
it became a binding agreement when the court sentenced him in
accordance with the joint recommendation. State v. Pedro Jumping
Eagle,___ N.W.2d ___ (Minn.) 12/28/00.
Sex Offender Registration: Withdrawal Of Guilty Plea.
Following his plea and sentence, the appellant found out, for
the first time, that he had to register as a sex offender, having
been convicted of possession of child pornography. He filed a
motion for withdrawal of his guilty plea, which was denied by
the trial court.
Held, sex offender registration requirements are collateral consequences
to a criminal conviction, and do not entitle a defendant to withdraw
a plea solely on the basis that the court failed to inform the
defendant of this requirement at the time of his plea. Similarly,
the failure to advise of the collateral consequences, such as
sex offender registration, does not fall below an objective standard
of reasonableness that constitutes ineffective assistance of
counsel. Douglas Wade Kaiser v. State, ___ N.W.2d ___
(Minn. App.) 01/02/01.
Multiple Convictions: Deferral of Sentence: Stay of Adjudication.
After a bench trial, the respondent was convicted of gross misdemeanor
911 interference, as well as first-degree burglary. The respondent
had entered into his estranged wife¹s residence through
an open garage door to talk with her. When she threatened to
call police, he unplugged the phone from the wall and then walked
out of the house and sat down in the back yard. His wife reconnected
the phone and called the police.
Following trial, respondent was found guilty of both offenses.
At sentencing, the trial court noted that the burglary verdict
was only a technical violation, and that the court intended to
defer sentencing on the burglary count, over the prosecutor¹s
objection. Instead, the court sentenced on the gross misdemeanor
911 count.
Held, the district court¹s deferral of sentencing on the
burglary charge was the functional equivalent to a stay of adjudication,
and special circumstances did not exist to support the deferral
of the sentencing for burglary. The dissent argues that Minn
Stat. § 609.035, subd. 1 specifically authorizes and contemplates
the trial court's sentencing disposition. State v. Richard
Alan Hoelzel, ___ N.W.2d ___ (Minn. App.) 12/26/00.
Crime for Benefit of Gang: Life Sentence. It is
permissible and authorized by Minn. Stat. § 609.229 for
the trial court judge to make a five-year term consecutive to
a life sentence for murder, where the additional five-year term
is for a crime committed for the benefit of a gang. Minn. Stat.
§ 609.229, rather than § 609.10, is the controlling
statute. Section 609.10 does not specifically provide for life
imprisonment plus a term of years, but this statute is modified
by § 609.229. State v. Keith Henderson, ___ N.W.2d
___ (Minn.) 01/11/01.
Search & Seizure: Vehicular Stop: Suppression.
The appellant was stopped for driving around a barricade marked
"road closed -- local traffic only." The road was under
construction, but was passable, and other roads lead into the
area. The officer stopping the appellant had been stationed at
the barricade, and was stopping every car to verify whether the
driver was an area resident. There was no information at trial
regarding the duration or frequency of the stops. The state contended
that the officer had reason to stop the appellant for a possible
violation of Minn. Stat. § 160.27, subd 5(14), which forbids
driving around a barricade erected to close a road to public
traffic.
Held, the record does not contain sufficient evidence to justify
the stop of the appellant, and the defense motion to suppress
should have been granted. There was no reason to believe a violation
of law was occurring, and the conduct of the appellant was entirely
consistent with a conclusion that the appellant was acting lawfully.
The court appears to agree that this is functionally a checkpoint,
and not authorized under Ascher v. Commissioner of Public
Safety, 519 N.W.2d 183 (Minn. 1994). State v. David Shafer
Anderson, ___ N.W.2d ___ (Minn. App.) 12/19/00.
Search & Seizure: Dog Sniff: Traffic Stop.
Appellants were stopped in their vehicle for a broken headlight.
The driver appeared nervous and shaking, avoided eye contact,
his speech was slow, and his eyes were glassy. The owner of the
vehicle, sitting in the back seat, refused to consent to a search
of the vehicle. While the assisting officer was in the process
of writing the citation, the arresting officer walked his drug-sniffing
dog around the vehicle. In three passes, the dog hit on the same
place, near the right headlight. After the third pass, police
searched the vehicle, and found drugs under the hood.
Held, the canine sniff of the exterior of the vehicle on a public
street is not a search within the meaning of the 4th Amendment,
following federal case law. Furthermore, the Court of Appeals
refuses to interpret the Minnesota Constitution to grant more
protection in this circumstance. State v. Wiegand, et al,
___ N.W.2d ___ (Minn. App.) 01/16/01
Evidence: Spreigl: Relationship of Victim and Defendant.
Appellant was charged with furnishing alcohol to two minors,
and was acquitted of all but one count. At trial, the state presented
evidence that several years before, the appellant¹s roommate
had seen the appellant and the victim sleeping in a living room,
surrounded by empty beer cans. This roommate testified that he
never actually observed the appellant and the victim drinking
alcohol, or the appellant providing the victim with alcohol.
Held, the admission of this Spreigl evidence was a clear
use of discretion, and entitles the appellant to reversal of
the verdict and remand. All cases admitting evidence about other
acts involving defendant and victim demonstrate a relationship
with the parties and the plausibility that one has harmed the
other. In this case, the friendship between the appellant and
the victim is not in dispute. Proof of their relationship does
not help to establish the appellant¹s plan or motive to
supply alcohol. Furthermore, the appellant raised no defense
of accident or reliance in good faith upon assertions of age
by the minor. State v. Corey Ryan Walthers, ___ N.W.2d
___ (Minn. App.) 12/26/00.
Assault: Loss of Consciousness: Third-Degree Assault.
Held, an individual who is rendered unconscious temporarily is
sufficiently injured for the respondent to be charged with third-degree
assault. Minn. Stat. § 609.221, subd. 1 defines "great
bodily harm" to include bodily injury which creates a high
probability of death, or which causes serious permanent disfigurement,
or which causes a permanent or protracted loss or impairment
of the function of any bodily member or organ or other serious
bodily harm." An individual who is rendered unconscious
temporarily loses or is impaired in a function of the brain,
a bodily organ. Such a person loses the ability to receive and
interpret sensory impulses. "Although temporary, this loss
or impairment of sensory brain function is total and thus 'substantial.'"
Hence, the court concludes that a temporary loss of consciousness,
by itself, is sufficient for the respondent to be charged with
third-degree assault. State v. Brian Edward Larkin, ___
N.W.2d ___ (Minn. App.) 01/02/01.
Bribery: Public Employee: Termination Of Employment.
Appellant had been diverting child-support payments to his own
benefit while he was a child-support officer employed by the
county. Subsequent to this termination, he solicited a false
affidavit from a payor, and he specifically instructed a successor
child-support officer to change the amount of the payor¹s
child-support obligation, effective retroactively.
Held, because the appellant was no longer "employed by"
the county, his conviction for bribery should be reversed. Whether
he was acting for the county or exercising the functions of a
public officer is ambiguous and unclear; however, because this
is a criminal statute, any ambiguity must be construed in favor
of the appellant and against the state. State v. Kenneth Wayne
Woelfel, ___ N.W.2d ___ (Minn. App.) 01/02/01.
Procedure: Closing Argument: Conflict Between Statute and
Rule. Minn. Stat. § 613.07 provides the prosecution
with the right of automatic rebuttal. The subsequently amended
Rule 26.03, subd. 11 of the Rules of Criminal Procedure restricts
this rebuttal to a direct response to the matters raised in the
defendant¹s closing argument. Furthermore, the rule provides
limited surrebuttal if the court determines that the prosecution
has made, in its rebuttal, a misstatement of law of fact or a
statement that is inflammatory or prejudicial. "[C]ourts
should look to Minn. R. Crim. P. 26.03 subd. 11, as the final
word on the right of rebuttal during closing argument, and the
limited right of surrebuttal." State v. Terry Ken Breaux,
___ N.W.2d ___ (Minn. App.) 01/02/01.
Polling Jurors: "Guilty with Reservation."
While polling the jurors subsequent to a guilty verdict, one
juror stated "guilty with a reservation." Trial counsel
did not object or ask the court for clarification, and the trial
court did not, sua sponte, make any inquiries or take
any other action.
Held, the trial court did not abuse its discretion by finding
that the juror acquiesced in the verdict freely, and by taking
no additional action. The decision to further question a juror
is discretionary, and turns on the degree to which the juror¹s
answer to the poll was reluctant, equivocal, or conditional.
The trial court has latitude in deciding this issue, and may
consider factors such as the juror's demeanor, as well as his
or her conduct during voir dire. This case contains a useful
summary of solutions to juror equivocation upon polling. Julie
Ann Burns v. State, ___ N.W.2d ___ (Minn. App.) 01/02/01.
Notice to Remove: Conflict with Rule and Statute.
Appellant was notified of the trial judge assignment by a letter
dated May 12, 1999, sent by the clerk of court. The letter stated
that the judge had been assigned to the Omnibus hearing set for
May 26th, and for all subsequent hearings. "For purposes
of MSA 652.13 . . . ." The letter did not reference Minn.
Rule of Crim. Proc. 26.03.
During the May 26th Omnibus hearing, appellant orally requested
that the judge remove himself, which motion was denied. Appellant's
attorney had not served on the other party and filed with the
court administrator a notice to remove, nor had this been done
within seven days following receipt of notice of the judicial
assignment, as required by Rule 26.03, subd. 13(4). On the other
hand, Minn. Stat. § 542.16 allows a notice to remove to
be made any time not less than two days before the expiration
of the time allowed to prepare for trial.
Held, peremptory removal is a matter of procedure rather than
substance; hence, Rule 26.03 supersedes Minn. Stat. § 542.16.
Appellant did not comply with the rule in two separate ways:
The motion was not timely, and the appellant did not file and
serve a written motion. For these reasons, the trial court properly
denied the notice to remove. State v. Joseph Allen Azure,
___ N.W.2d ___ (Minn.) 01/25/01.
Questions by Jurors: Due Process. In this gross
misdemeanor trial, the court allowed jurors to submit written
questions. Allowing jurors to submit questions to witnesses was
a common practice of the presiding judge, although he did not
observe this practice in every case. At a pretrial conference,
appellant's counsel noted and objected to this practice. The
prosecution did not oppose the objection. However, questions
were submitted in writing. The parties were allowed to review
the questions. The prosecutor objected to one question, and it
was not asked. The remaining questions were posed to the witnesses
by the court. Counsel for appellant did not object to any of
the questions submitted by the jurors, and was allowed to engage
in follow-up questioning. Held, there was no denial of due process
by allowing the jurors to submit questions in this manner. No
rule or statute specifically allows or prohibits juror questions
to witnesses. The majority of jurisdictions have held that permitting
jurors to question the witnesses lies within the sound discretion
of the district court, and Minnesota will now follow the majority.
The court notes that the procedure used by the judge in this
case eliminated (1) any risk that an attorney would be forced
to make an objection to a question in front of the inquiring
juror, thereby offending the juror; (2) the problem of a juror
asking a question prohibited by the rules of evidence, and (3)
antagonism that could result from direct questioning. State
v. Gerald J. Costello, ___ N.W.2d ___ (Minn. App.) 01/23/01.
Vienna Convention: Applicability: Prejudice. Appellant,
a Mexican national, was arrested pursuant to exigent circumstances
involving use of controlled substances and attempted arson to
his own home. After the pat search, he was found possessing 38.6
grams of methamphetamine. During an interview the following day,
after a Miranda Warning, he confessed that the drugs inside his
pocket were his. At no time was the appellant notified of his
right to contact the Mexican consulate as provided by the Vienna
Convention on Consular Relations.
As the supreme law of the land, the Vienna Convention, a treaty,
does apply in these circumstances, and was apparently violated.
The convention itself, however, does not prescribe any recourse
for violation of its requirements. Held, the appellant bears
the burden of proving that he was prejudiced by the violation,
a burden which has not been met in this case.
Although the appellant provided an affidavit from the Mexican
consulate stating that it would have advised appellant to not
speak with authorities without an attorney present, and not to
answer any questions asked of him in English, this is not a sufficient
showing of prejudice. Before giving a statement to the police,
the appellant was notified of his right to counsel and the right
to remain silent, which he voluntarily waived. Furthermore, the
appellant¹s confession was in English, and he makes no claim
now that he did not understand English or that he did not understand
his right to counsel and to remain silent. There is no indication
that he did not know how to retain counsel. State v. Delfino
G. Miranda, ___ N.W.2d ___ (Minn. App.) 01/23/01.
-- Frederic Bruno, Esq.
Frederic Bruno & Associates |
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