Tuesday, May 31, 2011

A Plea Agreement, Alone, Does Not Support a Sentencing Departure; Where No Reasons Were Stated, Presumptive Sentence is Only Permissible Sentence on Remand

State v. Haggins, Minn.Ct.App., 5/3/2011.  A jury convicted Mr. Haggins of fourth degree assault for head butting a correctional officer at the Stillwater prison.  Mr. Haggins represented himself during trial, with the presence of stand by counsel.  After conviction, stand by counsel negotiated a six month upward sentencing departure; Mr. Haggins waived his right to a jury determination of any aggravating factors.  Other than the negotiated agreement the trial court made no findings to support the departure.

A plea agreement, standing alone, does not create the substantial and compelling circumstances that are necessary to support a departure.  State v. Misquadace, 644 N.W.2d 65, 71 (Minn. 2002).  Because the trial court did not even attempt to state reasons, the appellate court cannot flyspeck the record in search of such reasons.  The matter must be remanded, and the trial court can only impose the presumptive sentence.  No redo.  State v. Rannow, 703 N.W.2d 575 (Minn. App. 2005).

Trial Court Had Proper Grounds to Support Upward Durational Departure

State v. Weaver, Minn.Ct.App., 5/3/2011.  Mr. Weaver has twice – once by jury, once by judge – been convicted of unintentional murder - killing his wife in the laundry room of their home - and then setting fire to the house to disguise the homicide.  The parties disputed the cause of death; the state said that the wife died from carbon monoxide inhalation during the fire, but the defense said it could not be determined whether death had been from her head injury or from carbon monoxide.  The judge sided with the state, finding that she had died from inhalation of carbon monoxide.  The judge also found that the wife would have survived the head injury had she received medical assistance and that Mr. Weaver believed that the wife was dead when he lit the fire.  The court denied Mr. Weaver’s request for a downward durational departure, and imposed an upward departure of half again what the Guidelines called for on the basis of particular cruelty.

There were two actions that the trial court said supported a departure based on particular cruelty.  First, Mr. Weaver failed to summon aid that could have saved his wife’s life.  Second, instead of calling for help he set the fire in an effort to destroy evidence, especially his wife’s body.  Mr. Weaver challenged both of these assertions.

Failure to render aid:  This cannot be an aggravating factor in an intentional homicide.  State v. Robideau, 783 N.W.2d 390 (Minn.Ct.App. 2010), rev’d on other grounds, __ N.W.2d __ (Minn. Mar. 23, 2011).  The appellate court ducks the question whether such failure can be a permissible departure reason in an unintentional homicide because it likes other reasons better to support this departure.

Like torching the wife’s body.  Almost twenty-five years ago the court of appeals upheld a sentencing departure based on a defendant’s torching of his victim, even though he believed that the victim was dead.  State v. Direcks, 412 N.W.2d 765 (Minn.Ct.App., 1987).  Mr. Weaver objected to this reasoning, arguing that torching the body was either part of the arson or uncharged conduct (Concealment, Minn.Stat. 609.502.)  Arson, however, is an exception to the cumulative punishment prohibition of 609.035 and so the arson can be both the underlying offense of the felony murder and a basis for departure.  State v. Jones, 745 N.W.2d 845, 849 (Minn. 2008). 

The appellate court also thought that because the wife suffered multiple injuries, inflicted by two different methods – assault and fire – the departure was proper.  Finally, the appellate court upholds the trial court’s denial of his departure motion.  He had asked the trial court for a presumptive sentence equal to what that sentence had been before a legislative change back in 1989, which Mr. Weaver argued had been made for political reasons rather than empirical research.  The appellate court declines to hold that disagreement with a particular guideline is a proper basis for a departure.

Animal Rights Protests Were Protected Speech

State v. Peter, Minn.Ct.App., 5/3/2011.  Back on March 4, 2010, as was their wont, Mr. Peter and Mr. Lawson were conducting an animal rights protest outside Ribnick Fur; the men were chanting, carrying signs or banners and trying to talk to people (“Do you know they clubbed fifteen baby minks to make that fur coat you’re ogling?).  The men neither entered the store nor stopped any customers from entering the store.  They were yelling loudly.  They were heard to inform the owner of the fur store that they knew where he lived and that they knew his vehicle license plate number.  Some observers across the street claimed that the men were harassing customers so the officers arrested the pair for disorderly conduct.  A jury – all wearing fake rabbit - convicted them nonetheless.

The appellate court reverses for want of sufficient evidence.  Chanting about killing baby seals and the like is protected speech so long as it does not rise to the level of “fighting words.”  Back in the day, protesters who called police officers “mother fucking pigs” were thought to have crossed that line.  State, City of Minneapolis v. Lynch, 392 N.W.2d 700, 703-04 (Minn. App. 1986).  On the other hand, when a fourteen year old girl told two officers, who were sitting in a squad car thirty feet from her, “fuck you pigs,” she was protected from prosecution.  In re Welfare of S.L.J., 263 N.W.2d 412, 419-20 (Minn. 1978). 

Then there are matters of “public concern.”  Like gay bashing at funerals of servicemen killed in either Iraq or Afghanistan.  Snyder v. Phelps, 131 S.Ct. 1207 (2011).  As odious as it apparently was, the protest was protected speech.  Public protest cases, like this one, inevitably involve both speech and expressive conduct as well, like moving around, waving signs and the like.  Holding signs, chanting, commenting about killing baby seals – none of that is “fighting words.”  Doing all this, without benefit of a bullhorn,  on a downtown Minneapolis street in the afternoon was also protected.  For all that, the state’s evidence was insufficient to support a conviction of disorderly conduct.

Thursday, May 19, 2011

No Miranda Warning Required For Non-Custodial Interrogation

State v. Vue, Minn.S.Ct., 4/27/2011.  A jury found Mr. Vue guilty of crime committed for the benefit of a gang (first degree murder while committing drive-by shooting).  Officers focused on Mr. Vue as a possible suspect; they learned that he was in Sacramento, California so they hopped a plane to go see him.  Officers met with Mr. Vue at the local police station; the officers told him that he was not under arrest and was free to leave.  When the officers began to ask questions about the homicide Mr. Vue ended the interview.  A local officer then gave him a ride home.

Two days later, the Minnesota officers again met with Mr. Vue at the local police station.  Eight minutes into the meeting Mr. Vue confessed to the homicide.  At the end of that interview local officers again gave Mr. Vue a ride home.  Mr. Vue then disappeared and it was three years later before police arrested him on the murder.

Mr. Vue moved to suppress the statements he made during the second interview, saying that this second interview had been a custodial interrogation for which a Miranda warning was required but not given.  Mr. Vue did not claim that his statement had been involuntary.

Now for the rest of the story on this second interview.  Before this interview a bunch of cops – eight of them to be exact – stormed into Mr. Vue’s Sacramento home to execute a search warrant.  The officers found only Mr. Vue home.  The officers handcuffed Mr. Vue in the kitchen, telling him that “this is not going away.”  The officers then took the cuffs off Mr. Vue and let him walk around in the yard.  Mr. Vue agreed to be interviewed and rode in the front seat of the squad car to the police station.  The officers left him unattended in the lobby for a while during which Mr. Vue could have left.  During the interview he was told that he was not under arrest and that he would not be arrested that day.  He was not arrested then; indeed, the officers took him home afterwards.

The appellate court concluded that Mr. Vue was not in custody during this second interview and thus no Miranda warning was required.

Mr. Vue also complained of prosecutorial misconduct in closing argument.  The prosecutor said that the jury would have to believe the impossible by believing that Mr. Vue might have admitted to something that he didn’t do.  The appellate court concluded that this was close to misconduct but let it go because the prosecutor immediately linked that assertion with a discussion of the confession that made it a true confession.

Failure of Lower Sioux to Have Requisite Liability Insurance Limits Deprive Lower Sioux Officer of Authority to Demand Breath Testing.

State v. Hester, Minn.S.Ct., 4/27/2011.  A Lower Sioux police officer arrested Mr. Hester on suspicion of driving under the influence.  The officer took Mr. Hester to jail where he asked him to submit to further testing.  Mr. Hester refused.  The state charged Mr. Hester with test refusal and a jury convicted him of that offense.

Mr. Hester filed a motion for a new trial.  He argued that he had not committed a crime when he refused the officer’s request for further testing because the officer did not have the authority under state law to require him to submit to testing.  Mr. Hester said that there were two reasons why the officer lacked this authority.  He said:

that the Lower Sioux police officer who arrested him did not qualify as a “peace officer” because Lower Sioux police officers are not specifically listed in the definition of “peace officer” in Minn. Stat. § 169A.03, subd. 18. He also argues that the Lower Sioux police officer who arrested him did not have the authority to request that he submit to a chemical test because the Lower Sioux did not satisfy the liability insurance requirements of section 626.91, subdivision 2.

First claim:  There are two statutes in play.  Minn.Stat. 169A.03, Subd 18 says that a “peace officer” includes a police officer of any county.  The other statute, Minn.Stat. 626.91, says that the Lower Sioux has the powers of a law enforcement agency if the requirements in subdivision 2(a) of that statute are met.  In that case, Lower Sioux officers have the same authority as officers appointed by the county sheriff.  So, a Lower Sioux officer is a “peace officer”.

Second claim:  Subdivision 2(a)(2) of 626.91 requires that the Lower Sioux file a bond or certificate of insurance for liability coverage in specified amounts.  The Lower Sioux had liability insurance at the time of Mr. Hester’s arrest, but the limits did not coincide with the required amounts.  The state argued that “close enough for government work” should be the test but the appellate court rejects this test.  Rather, the controlling distinction is between failure to comply with a technical provision of a statute versus failure to comply with the substance of that statute.  The Lower Sioux didn’t have the correct amount of insurance coverage, which is not a technical violation.  As a consequence the officer had no authority to require Mr. Hester to submit to testing.

Assault as The Intentional Infliction of Bodily Harm Is A Specific Intent Crime For Which Voluntary Intoxication is a Defense.

State v. Fleck, Minn.Ct.App., 4/26/2011.  Mr. Fleck went on a bender, drinking for “seven days straight.”  When his girlfriend, K.W., came home, Mr. Fleck stabbed her.  He then made several phone calls and then sat down to await the arrival of the police.  Mr. Fleck told the police that he had taken forty Serquel pills; shortly thereafter he passed out.  Officers took him to the hospital where his blood alcohol level registered .315.

The state charged him with second degree assault.  There are two ways that you can commit this crime:  act with intent to cause fear in another of immediate bodily harm or death; and intentionally inflict or attempt to inflict bodily harm upon another.  Minn.Stat. 609.222, subd 1.  Mr. Fleck relied on the defense of voluntary intoxication.  The state objected, saying that the later assault is a general intent crime for which voluntary intoxication is not a defense.  The trial court agreed, but instructed the jury, nonetheless, that voluntary intoxication was a defense to an act with intent etc. 

But, was Mr. Fleck entitled to an intoxication instruction on the form of assault defined as the intentional infliction of bodily harm upon another?  The answer depends on whether this form of assault is a specific intent crime.  It turns out that the answer is, yes.  Intent to harm makes this form of assault a specific intent crime.  In fact, the Minnesota Supreme Court had already said this was so, back in 1998.  State v. Edrozo, 578 N.W.2d 719 (Minn. 1998). 

Mr. Fleck had requested a voluntary intoxication instruction that would be applicable to both forms of assault.  When the trial court said it would not give that instruction for both forms of assault, Mr. Fleck made no further objections to the court’s instructions.  As a result, the state said that Mr. Fleck had failed to preserve the objection and thus the error had to be considered under a plain error analysis.  The appellate court rejects this contention.  Mr. Fleck asked for an instruction and didn’t get it.  He preserved the issue for review on appeal.

The jury had acquitted Mr. Fleck on the assault based on an act with intent to cause fear, etc.  The error in not extending the voluntary instruction to the other form of assault was prejudicial error.  Mr. Fleck gets a new trial.

Sunday, May 1, 2011

State’s Proof Insufficient To Prove Drive By Shooting

State v. Brown, Minn.Ct.App., 4/19/2011.  The state charged Mr. Brown with a drive by shooting but apparently all that they could muster as evidence was that Mr. Brown drove to the shooting.  There’s a difference.

Mr. Brown had a thing going with three other guys:  Randell, Curtis, and Anthony; their rambunctious arguments and fisticuffs were renowned up in Alexandria.  This escapade began when Randell, Curtis and Anthony were sitting around one night drinking, during which Anthony noticed a car drive past the house two times.  Nothing else.  Sometime later, none of the guys could exactly say how much later, Anthony heard gunshots that he believed were being fired at the house. 

Before all this happened, Mr. Brown and his buddy, Russel, had asked this girl, Kujawa, to give them a ride to Brown’s girlfriend’s house.  When Kujawa stopped the car, at Mr. Brown’s directive, Russel and Mr. Brown got out and commenced to argue; Kujawa turned up the volume on the radio and began rummaging through the glove box (apparently to make a kind of white noise to mask the argument).  Russel got back into the car and the two of them had this heart to talk about relationships:  theirs, Russel’s new relationship, Kujawa’s marriage.  While all that was happening Kujawa couldn’t help hearing these load noises that she later understood were gunshots but at the time she thought was Mr. Brown thumping on a wall.  Mr. Brown got back in the car.  Even later still, Kujawa came to realize that she had stopped her car within blocks of where Anthony was hearing gunshots.

The drive by shooting statute says that if you don’t shoot from your car then you have to have “just exited” that car when you pull the trigger.  The existential question is how far can one be from one’s car and still commit a “drive by” shooting.  A decade ago, one Mr. Lewis drove to a city park, jumped out of car, ran across to the other side of the city park, waited (only a few seconds) for his victim to dribble a basketball down the court, shot him, walked back to his car, got in, and left.  State v. Lewis, 638 N.W.2d 788 (Minn.Ct.App. 2002).  In Lewis, the court said that the act of shooting must “immediately follow” the exit from the car. 

Here, both sides agreed that Anthony’s account was worthless; both sides argued whether Kujawa’s account was enough to convict.  The court of appeals says, no:

The state proved beyond a reasonable doubt at most that Brown engaged in a drive-near-the-area-get-out-of-the-car-argue-for-awhile-walk-“a few”-blocks-fire-the-gun-walk-back-to-the-car-and-drive-away shooting.

Mr. Brown walks.  Back to his car one supposes.