Recent Minnesota Supreme Court Grants of Petitions For Further Review.

State v. Morales, Minn.Ct.App., 4/28/09, review granted, 7/23/2009.  I wrote about this opinion here.  This is the whore house robbery/murder with a mess of interlocking statements.  The Court of Appeals thought that the evidence rulings had been sufficiently botched to require a new trial.  The Supreme Court has granted the State’s petition for further review.

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Finnegan v. State, Minn.Ct.App., 5/5/2009, review granted, 7/23/2009.  This is the case where the Court of Appeals said that attempting suicide is a voluntary absence from attendance at trial such that the trial may continue anyway.  I wrote about this opinion here.  The Supreme Court has granted Mr. Finnegan’s petition for further review.

Link to Source Code Consent Judgment and Permanent Injunction

Here’s a link to the consent judgment.

DUI Enhancement Based On License Revocation Survives Various Constitutional Challenges.

State v. Omwega, Minn.Ct.App., 7/21/2009.  In August, September and October, 2006, police arrested Mr. Omwega for driving while impaired.  Following each arrest, the driver’s license people revoked his license; Mr. Omwega did not challenge any of these revocations.  Alas, in March, 2007, police again arrested Mr. Omwega for driving while impaired, and this time the prosecutor charged him with felony first degree driving while impaired.  Mr. Omwega made numerous constitutional challenges to the use of license revocations to enhance the offense to a felony, all of which the appellate court rejects.

First, the Fifth Amendment’s due process clause does not prohibit this enhancement.  This is settled law, at least in Minnesota.  State v. Coleman, 661 N.W.2d 296 (Minn.Ct.App. 2003); State v. Goharbawang, 705 N.W.2d 198 (Minn.Ct.App. 2005).

Second, Mr. Omwega made an Apprendi argument that enhancement is forbidden unless a jury finds not only the existence of a revocation but also all of the underlying facts associated with the revocation.  The appellate court makes the conclusory pronouncement that  Apprendi requires only proof of the existence of the revocation itself.  The court also does not want to convert the revocation process into a criminal process – a jury and all that - a concern that the court used in rejecting a similar argument that the implied-consent hearing is a de facto criminal proceeding.  See Davis v. Comm’r of Pub. Safety, 517 N.W.2d 901 (Minn. 1994).

Lastly, Mr. Omwega challenged the September revocation as unconstitutionally obtained.  He complained that the state had not provided timely notice of the revocation; that his waiver of judicial review was neither considered nor knowing; and that because he was not the driver fundamental fairness prohibited revocation.  Notice, both the trial and appellate court concluded, was sufficient when the officer stuffed the notice papers into Mr. Omwega’s bag as he was headed out the door of the police station upon his release.  Waiver, the appellate court concluded, may properly consist of simply not exercising the review mechanism.  Third, while it’s true that at the time of the officer’s stop Mr. Omwega was not driving, the driver told the officer that Mr. Omwega had been driving.  This is sufficient.

Court Upholds Second Search Warrant of Defendant’s Residence.

State v. Fort, Minn.S.Ct., 7/16/2009.  On December 15, 1990, someone broke into the home of eleven year old Marcus Potts, and stabbed him forty-four times, causing his death.  A police tracking dog picked up a scent from footprints in the snow that lead away from the house to an address three or four houses down the street where, it turned out, Mr. Fort lived.  Police executed a search warrant at Mr. Fort’s house; they found a pair of shoes that had a “consistent” foot pattern and some clothes.  DNA analysis of blood on a pair of pants did not match either Potts or Fort.  

Ten days later, police obtained a second search warrant for Mr. Fort’s house; they did so because they had acquired “equipment from the Minnesota Bureau of Criminal Apprehension … that could detect blood that was not visible to the naked eye.”  This machine found eight small drops of blood.  These drops were too small to be tested in 1990, but not too small in 2001.  The 2001 testing produced a DNA profile that matched that of Potts.

While awaiting trial, four jail inmates came forward with claims that Fort had confessed to killing Potts.  While the jury deliberated, another jail inmate called Fort’s attorney to report that Fort’s cousin, Paul Rice, was whiling away the time by confessing “to the ‘whole wing’ of the jail that he had killed Potts.  The trial court held an evidentiary hearing on this new claim but declined to grant Fort a new trial on the basis of it.

Mr. Fort challenged the second search warrant, arguing that there was no new probable cause to support it.  The appellate court rejects this double dipping argument – State v. Zanter, 535 N.W.2d 624 (Minn. 1995).  Both applications had sought bloody items; indeed the first search produced blood on a pair of pants.  All that the second application added was the desire to look for bloody items again only with this magic BCA machine.  The appellate court concludes that this desire to look for the same thing, only using a different technique, provided the “new information” on which the second magistrate could find new probable cause to believe that “new evidence” would be found.

Mr. Fort also challenged the state’s proof of premeditation to support the first degree murder conviction.  The appellate court basically counts to forty-four and rejects this argument. 

The appellate court then considered the new evidence, Mr. Rice’s purported confession to his jail buddies, and whether Mr. Fort should get a new trial because of it.  To get a new trial on the basis of new evidence here’s what a defendant has to establish:

In order to obtain a new trial based on new evidence, the defendant must show that: (1) the evidence was not known to him or his counsel at the time of trial; (2) the failure to learn of the new evidence was not because of lack of diligence; (3) the evidence is material and is not impeaching, cumulative, or doubtful; and (4) the evidence is likely to produce an acquittal or more favorable result for the defendant. State v. Pippitt, 737 N.W.2d 221, 226 (Minn. 2007).

The state conceded that Mr. Fort met the first two parts of this standard.  The appellate court thus devotes two paragraphs to a look at the remaining two parts of the test.  They decided to defer to the findings of the trial court that the evidence of Mr. Rice’s confession was “too doubtful to support” a new trial, and that this evidence “lacked credibility.”  There are snitches and there are snitches.

Lastly, the state conceded that Mr. Fort could not be sentenced on both first degree premeditated murder and first degree felony murder.

Co-owners Do Battle Over Burglary Statute’s Meaning of “Lawful Possession.”

State v. Spence, Minn.S.Ct., 7/17/2009.  Mr. Spence and his girlfriend, A. S., owned a house together.  When the couple – who were never married – split up they agreed to pay the mortgage equally although A.S. and the children continued to live in the house.  A.S. did not change the locks.  A jury convicted Mr. Spence of first degree burglary for entering the residence and assaulting A.S.  (At the time of the burglary, there was no order for protection in force.)  During jury deliberations, the jury sent out this note, to which the court responded:

Note:  “Does a ‘house title’ owner have the right to enter a dwelling occupied by someone else ([example] renter) at any time without permission? Lawful Possession.”

Response:  “Yes, unless the joint owner has been divested of the right to lawful possession of the property by an Order for Protection, or by an agreement made with the joint owner.”

On appeal, Mr. Spence argued successfully to the Court of Appeals that because he was a co-owner of the residence he could not commit a burglary unless a court order had divested him of lawful possession.  The Minnesota Supreme Court reverses, but with two dissenting votes.

To constitute burglary, the entry must be “without the consent of the person in lawful possession.”  The state wanted “lawful possession” to mean actual physical control of the building; Mr. Spence wanted the phrase to mean legal ownership, which could be divested only by a court order or a written agreement with other owners.  The appellate court rejects the state’s proposal because it would encompass a trespasser who maintains possession simply by being there.  (Squatters, not being in “lawful possession” apparently can’t be the victim of a burglary.)  The court didn’t like Mr. Spence’s proposal any better; it ignored the ordinary meaning of “possession,” which is to exercise control over the object.  So, what to do?

Uphold the trial court, in large part because Mr. Spence did not object to the court’s response to the jury’s note.  The trial court’s response, which allowed for implied agreements for divestment of lawful possession, was not “plain error.”  The court does leave the door slightly ajar on the question of an implied agreement because it does not address the question whether an agreement made with the joint owner must be in writing to be enforceable under the statute of frauds.  See Minn.Stat. 513.01 (1); Mr. Spence did not raise this issue in the trial court or the in the court of appeals.  As a result, that question awaits another day.

Justice Page, dissenting, did not think that the record supported an agreement by Mr. Spence to divest himself of the right to enter the residence.  All that the record established was that one co-owner – Mr. Spence – allowed the other co-owner – A.S. – to be the sole occupant.  This fact, and nothing more, does not establish an implied agreement that Mr. Spence divested himself of the right of entry.

An Incomplete Memory Permits Introduction of Recorded Recollection Under Rule 8.03(5)

State v. Stone, Minn.Ct.App., 7/7/2009.  Mr. Stone, unmasked, and his masked companion crashed a house that they believed had lots of cash in it; there was some cash but a lot more people, one of whom Mr. Stone shot.  Two of the occupants told the police that Mr. Stone was one of the assailants; another of the occupants, G.J.,  identified Mr. Stone from a photo array.  At trial, which occurred nine months later, G.J. had difficulty recalling that he had made an identification, whether he’d got a good look at the unmasked man, and what description of the intruder he had given to the police.  He did agree that his witness statement was an accurate reproduction of the questions and answers from the police interview that occurred shortly after the break in.  His typical response at trial to the question whether he believed that he had sufficient recollection to testify fully and accurately about what happened was “That’s all I remember right now.”  Over objection, the trial court allowed the state to play the entire recording of G.J.’s police interview.

The trial court admitted the recording as a recorded recollection under Rule 8.03(5):

[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness‟ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

The appellate court gives the rule an expansive reading.  A witness’s incomplete memory is enough.  The rule is satisfied, and the previous statement or recording comes into evidence, when the witness’s recollection at trial is impaired to an extent that he is unable to testify fully.  A recorded recollection may then “supplement” (replace?)  that incomplete memory.

Mr. Stone also complained that G.J. had neither made nor adopted the recording, a requirement of the rule.  The appellate court concludes that a recording in the witness’s own voice, made at a time when the events described would be fresh, satisfies the rule.