Polygraph Results Not Admissible in Probation Revocation Hearings

State v. Nowacki, Minn.Ct.App., 5/23/2016.  Mr. Nowacki was on probation for third degree criminal sexual conduct.  One of the conditions of his probation was to submit to polygraph examinations by either probation or his treatment provider.  A third violation alleged that Mr. Nowacki failed to complete sex offender treatment.  In support of that allegation his treatment provider testified that Mr. Nowacki had failed multiple polygraph examinations.  Mr. Nowacki objected to this testimony but the court overruled the objection.  The court revoked Mr. Nowacki's probation.

On appeal, he complained that the trial court's determination that he had violated probation improperly considered the failed polygraph examinations.  The court of appeals agreed that consideration of the failed polygraph examination was an error, citing long-standing Minnesota law that polygraph results are not admissible in either civil or criminal trials.  Virginia, Texas, Florida, and Kansas have also held that polygraph results are not admissible in probation violation hearings, and the court of appeals adopts that prohibition. The court also determined, however, that this error did not affect the trial court's decision to find that Mr. Nowacki had violated his probation. 

Probable Cause Existed For Defendant's Arrest; Batson Challenges Rejected

State v. Onyelobi, Minn.S.Ct., 5/18/2016.  Ms. Onyelobi, her boyfriend Maurice Wilson, and David Johnson were heroin dealers. Among others, they sold to Anthony Fairbanks, his sister and his mother.  Ms. Onyelobi, et.al. took drug orders on a cell phone dedicated for that purpose, the "208" phone.  They made deliveries in a somewhat distinctive two-tone van with darkly tinted rear windows.

Just before he was killed the feds indicted Fairbanks on drug conspiracy charges.  They also indicted Wilson, who was in the local jail.  Wilson called Ms. Onyelobi from the jail to inquiry if she and Johnson had "taken care of that," apparently referring to Fairbanks.  She said that they had not but that they were working on it.  

And, apparently they were.  Later that same day, Fairbanks left his mother's place to pick up heroin from Ms. Onyelobi.  A short distance from his mom's place, however, someone shot Fairbanks three times and left in the aforementioned two-tone van.  Police later found the murder weapon in a storage facility that Ms. Onyelobi had rented.  The cops also connected Wilson's federal indictment to Fairbanks and to Ms. Onyelobi, learned who belonged to the 208 phone and located Ms. Onyelobi at a local motel.  When the cops arrived, the two-tone van was in the parking lot; Ms. Onyelobi wasn't there, but Johnson was.  When he opened the door the cops saw suspected narcotics inside; they "froze the scene" until they could get a search warrant.  While waiting for that Ms. Onyelobi showed up.  Once they had the search warrant they seized the suspected narcotics and arrested Ms. Onyelobi for possession of those suspected narcotics.  And then for aiding and abetting Fairbanks' murder.

At trial for premeditated first degree murder Ms. Onyelobi complained that the police didn't have probable cause to arrest her for possession of the narcotics and so all of the evidence that the cops seized thereafter had to be suppressed.  The trial court disagreed and Chief Justice Gildea affirmed that determination. The Chief said that at the time that the cops took off to the local motel to find Ms. Onyelobi here's what they knew that supported probable cause that she constructively possessed the drugs in her motel room:

(1) Onyelobi was Fairbanks’s and S.F.’s drug dealer; (2) Onyelobi dealt drugs with two other males; (3) Fairbanks and S.F. called the 208 number to acquire heroin and spoke with Onyelobi; (4) Fairbanks called the 208 number to acquire heroin 3 days earlier, immediately before his death; and (5) tracing technology placed the cell phone connected to the 208 number at the Red Roof Inn. Furthermore, when they arrived at the hotel, VCAT officers confirmed with Red Roof Inn staff that Onyelobi had been renting a room there since March 6, and that she had renewed her stay through March 15. VCAT officers also observed the two-tone van—which S.F. indicated was typically used by Onyelobi and Wilson in drug deals—located in the Red Roof Inn parking lot. After observing the bag of suspected narcotics in the room, VCAT officers also saw multiple cellular phones lying in plain view. 6 And while Onyelobi was not initially present inside the room, she arrived at the Red Roof Inn around 30 minutes later, confirming her occupancy.

During jury selection the state struck three potential jurors who self identified as Black or African American.  The jury apparently did include one juror from Ghana. The defense made Batson challenges to the three strikes, all of which the trial court rejected and all of which Chief Justice Gildea affirms.  The Chief focused on the first Batson, requirement, a prima facie case of discrimination.  The first strike, by itself, does not necessarily establish a prima facie case, State v. White, 684 N.W.2d 500 (Minn. 2004).  Nor was the Chief satisfied that the third strike, which the trial court described as a "pattern," established a prima facie case.  The court avoided the issue, however, by jumping to the third requirement of "purposeful discrimination."  For each of the strikes the court concluded that the state had not engaged in purposeful discrimination.

Ms. Onyelobi complained about the trial court's accomplice liability instructions.  She said that the instructions should specify the exact crime that the state said she was aiding and abetting.  The language of the pattern jury instructions use "a crime" and "the crime;" Ms. Onyelobi wanted those words replaced with "first degree premeditated murder" to assure that the jury would not convict her under the belief that she was guilty if she intended to aid some lesser included crime.  

First, the state said that Ms. Onyelobi had failed to object to this instruction.  After lengthy discussions about the jury instructions, during which the trial court rejected defense counsel's request that the trial court give a tendered instruction that aligned with her "specific crime" argument defense counsel said that the instructions that the court intended to give were "accurate and correct" but nevertheless were "misleading" and "confusing.  The Chief says that this sufficiently brought the alleged error "to the attention of the trial court," and would not be reviewed under "plain error."

The Chief then addressed the merits of the argument and rejects it, saying that when the instructions are considered "as a whole" there could have been no confusion among the jurors about what crime they had to believe that Ms. Onyelobi aided.  The court also rejected a similar argument under the "expansive" complicity liability statute, that is, other crimes, having already rejected this argument a year ago in State v. Taylor, 869 N.W.2d 1 (Minn. 2015).

Ms. Onyelobi made several pro se arguments which the court rejected.

Court Upholds Murder Conviction, Rejecting Fourth & Sixth Amendment Claims

State v. Horst, Minn.S.Ct., 5/18/2016.  Ms. Horst and some of her friends plotted, for the usual reasons - infidelity, abuse - to kill Horst's husband, Brandon.  Eventually all but one of the friends, Allen, dropped out; for instance, on the way to the murder one of the friends ran into an old girlfriend and that was that.  Ms. Horst gave Allen a loaded gun, told him to hide in the basement until Brandon was asleep and then go upstairs and shoot him.  Ms. Horst then went shopping at Walgreens.  From there she sent multiple text messages urging Allen on until finally Allen shot Brandon one time in the head as he lay sleeping.  Ms. Horst then returned to the murder scene, called 911, and reported that someone had broken into her home and killed her husband.  The state charged Ms. Horst with first degree premeditated murder and Allen turned state's evidence against her.  

Police "invited" Ms. Horst to accompany them down to the police station, an invitation that she apparently accepted.  The officers questioned her in an unlocked conference room, she was allowed to keep possession of her personal belongings, and she left after concluding the interview. Justice Stras concluded that these facts supported the trial court's conclusion that the interview of Ms. Horst was not a "custodial" interview that required a Miranda warning.  Ms. Horst pointed to the two times that an officer accompanied her to the bathroom, the location of the interview at the police station, and the increasingly "accusatory tone" of the interview to support her claim that the interview was a "custodial" one.  Relying on a "totality of the circumstances" analysis, Justice Stras affirmed the trial court's conclusion that the interview had not been a "custodial" one.

Before Ms. Horst left the police station an officer grabbed her cell phone.  The state later got a search warrant to "seize" the contents of the phone, but Ms. Horst complained about the warrantless seizure of the phone, itself.  The trial court said that after Ms. Horst and the officer talked about what texts or calls might be on the phone an exigency existed because of the "possibility of imminent destruction or removal" of the data contained on the phone.  Justice Stras said that seizure of the phone in order to preserve its contents while getting a warrant was no different that "seizure" of a person whom police have probable cause to suspect had marijuana hidden in his home so that he could not sound the alarm.  Illinois v. McArthur, 531 U.S. 326 (2001).  Ms. Horst had argued that it would have been easy enough to get a warrant to seize the cell phone, which could have been accomplished with a phone call under Rule 36.03.  Justice Stras acerbically observes, however, that although the rule permits a telephone call to get a warrant the office must also prepare a "duplicate original warrant," which would mean interrupting the interview - is there only one officer working this case? - draft the warrant, call the judge, etc., all the while risking that Ms. Horst would simply get up and walk the cell phone out the door and into the nearest incinerator.

Ms. Horst complained about the state's use of multiple search warrants to obtain her medical records in order to refute her claim that she had miscarried multiple times as a result of Brandon's assaults.  Ultimately, however, the state did not introduce any of those records.  Ms. Horse nonetheless said that because the state had use of those records to formulate its theory of the case that there had been constitutional violations.  Justice Stras said that even if the records influenced the state's presentation of its case the evidence of guilt was sufficiently overwhelming that no reasonable jury would have reached a different conclusion.

Ms. Horst complained that the trial court should have given an accomplice corroboration instruction.  The state agreed that Allen was an accomplice, but because Ms. Horst didn't request the instruction it was harmless under the "plain error" doctrine.  Justice Stras agreed after going through a multi-factor analysis described in State v. Jackson, 746 N.W.2d 894 (Minn. 2008).

Finally, the court rejected Ms. Horst's claim that the state's evidence had been insufficient to convict her; and rejected a claim that because a potential juror and an investigator had been classmates some decades ago the trial court should have removed the juror for cause.

Rules of Evidence Apply to Blakely Bench Trials

State v. Sanchez-Sanchez, Minn.S.Ct., 5/18/2016.  Despite the title of this post this appeal is really about "plain error".   Mr. Sanchez-Sanchez pled guilty to some drug conspiracy charge and then agreed to let the trial judge hear and decide the aggravating factors question.  The state put on an FBI agent who was permitted without objection to testify to multiple layers of hearsay evidence.  Justice Hudson, writing for three other Justices, Justice Chutich not having been yet on the court, says that the rules of evidence apply in a Blakely court trial.  So it was error to let in all that hearsay testimony.  But under "plain error" this error was not "plain," and so there is no relief to Mr. Sanchez-Sanchez.  

It's not "plain" apparently because of Justice Stras' - oops, Justice Hudson's - originalist interpretation of Rule of Evidence 1101.  This rules begins by saying that the rules of evidence apply "to all actions and proceedings in the courts of this state."  It then says that the rule doesn't apply in certain "situations" one of which is "sentencing." This rule was last revised back in 1977, a long time ago in a galaxy far, far away.  Shortly after Blakely the question arose whether the "sentencing" exception in Rule 1101 meant that the rules didn't operate in a Blakely jury trial. Justice Hudson acknowledges that back in 2008 Justice G. Barry Anderson wrote State.v. Rodriguez, Jr.,, 754 N.W.2d 672 (Minn. 2008), in which the court said that the rules of evidence do apply in a Blakely jury trial.  Since there was no mention of Blakely court trials - why would there be - Justice Hudson insisted that whether the rules of evidence apply in bench trials remained open.  She also said that lower courts had been applying Rodriguez only to jury trials.  

That the rules of evidence also applied in a Blakely court trial seemed plain enough to Justices G. Barry Anderson and Dietzen, an odd couple for sure.  The dissenters thought that the analysis in Rodriquez left no doubt that the rules of evidence would apply in any Blakely trial, jury or bench. The dissenters pointed out that part of the Rodriquez rationale was that the criminal rules require that before a defendant can waive his right to a jury or judge trial on the existence of an aggravating factor that defendant must waive the right of confrontation before the court can accept an admission of facts in support of an aggravated factor. The Rodriquez court could also harken back some twenty-eight years before that in State v. Adams, 295 N.W.2d 527 (Minn. 1980). There, the state had sought career offender status for Mr. Adams and put on an evidentiary hearing before the trial judge at which hearsay evidence was admitted.  The appellate court said that a defendant was entitled to notice, opportunity to be heard and opportunity to cross examine the state's witnesses in such a hearing.  But since Mr. Adams had all that, the court declined to reverse his conviction. 

The court's originalist reliance on a rule, the text of which was written at a time when Blakley not only didn't exist but wasn't even contemplated, also ignores that Criminal Procedure Rule 27.03, Subd. 1(B) specifically authorizes receipt of testimony at a sentencing hearing.  

2/16/2016: No Court of Appeals Published Criminal Opinions

Making "Wide Right Turn" and Weaving Within Lane Support Traffic Stop

State v. Morse, Minn.S.Ct., 4/11/2016.  An officer pulled Mr. Morse over after seeing him make a "wide right turn" and weave once within his lane.  The cop insisted that Mr. Morse crossed over a virtual center stripe and almost hitting a car that was parked on the opposite side of the road.  The squad video didn't really bear the claim about almost hitting another car, however, and the trial judge declined to make a finding about that.  The trial judge did make a finding that the right hand turn was a bit wide and that Mr. Morse "drifted" within his lane.  Based on the obligatory "totality of the circumstances" the trial court upheld the stop and thus the DWI charge.

The court of appeals said that the right turn statute was unconstitutionally ambiguous and vague.  Justice Lillehaug, however, pointed out that no one had really raised that issue in the trial court and so they were not about to wade into that quagmire. The statute says that the turn must be made "as close as practicable to the right-hand curb or edge of the roadway."  Just what that means remains anyone's guess.

On the validity of the stop, here's what the Justices relied upon to conclude that  it was okay:

The relevant circumstances found by the district court included: (1) the squad-car video supporting the officer’s assertion that Morse’s right turn “onto Okabena Street was not as close as practicable to the right-hand curb or edge of the roadway”; (2) the squad car video showing Morse’s vehicle drifting in its lane; (3) the fact that the events occurred close to 2:00 a.m. bar closing time; (4) the fact that Morse was leaving downtown, an area with bars; and (5) the officer’s training and experience.

Weaving within the lane is apparently a proper factor on which to make a traffic stop.  State v. Ellanson, 293 Minn. 490, 198 N.W.2d 136 (1972).  This fact, alone, is apparently enough "totality" to support the stop.

Defendant May Base Challenge To Use of License Revocation to Enhance Criminal Charge On Incompetence At Time Of Revocation

Anderson v. Commissioner of Public Safety, Minn.Ct.App., 5/9/2016.  Mr. Anderson filed an implied consent proceeding to try to rescind the revocation of his license.  He filed this implied consent long after the 30 day limitations period.  Mr. Anderson said that as part of the criminal charges that resulted in his license revocation he'd been found incompetent to stand trial.  Because the revocation was now being used to enhance a pending DWI prosecution, the revocation violated his due process rights.

The court of appeals said that the 30 day limitations period is actually jurisdictional, so the court had no authority to hear the implied consent. However, the court does say that the state's use of a revocation that occurred when Mr. Anderson was mentally incompetent may be a violation of due process.  The place to make that due process claim is the criminal case where the state seeks to use the revocation:

However, an implied-consent proceeding “is not the proper forum in which to raise” a challenge to the state’s use of a revocation as a criminal enhancement. Davis, 509 N.W.2d at 389. “Instead, such arguments should be raised at the time a person is charged with” a crime. Id. District courts in criminal cases must scrutinize the use of such enhancements. The circumstances in this case may well constitute one of the “unique” cases in which a criminal defendant may collaterally attack a revocation to prevent it from serving as an enhancement. See State v. Schmidt, 712 N.W.2d 530, 538 (Minn. 2006)...

5/4/2016: No Supreme Court Published Criminal Opinions

5/2/2016: No Court of Appeals Published Criminal Opinions

Absence of Finding That Facts of Juvenile Petition Had Been Proven Precludes "Continuance Without Adjudication" Disposition

In the Matter of the Welfare of:  C.J.H., Child, Minn.S.Ct., 4/27/2016. The state charged C.J.H. with third degree criminal sexual conduct, attempted third degree criminal sexual conduct, and underage drinking. At his first appearance, the lawyers told the juvenile judge that there was an agreement for a "continuance for a dismissal" under juvenile rule 14.01, subd. 1.  Under the agreement C.J.H. had to provide a factual basis to the attempt charge.  Also, if he were unsuccessful with complying with the terms of the continuance for dismissal this factual basis would be submitted to the court with the understanding that this would likely result in a finding of guilt.  Although the prosecutor and the judge kept saying that C.J.H. was "pleading guilty" or "was guilty" the judge never made a finding that the allegations had been proven.  And never said that he was guilty.

Eventually C.J.H. violated the terms of the agreement and the juvenile court then adjudicated him delinquent.  C.J.H. appealed and said for the first time that, wait a minute, he hadn't really done a continuance for dismissal; rather, he'd done a "continuance without adjudication." He'd admitted to the crime, he'd waived his trial rights, so the only thing missing was the adjudication.  C.J.H. said this because if that were true then by the time the juvenile court violated him the court's jurisdiction had expired. Justice Hudson essentially says, nice try but no.  Despite the sloppiness of the initial appearance the Justice said that because the juvenile judge never made a finding that the allegations of the petition had been proven, something that the rule on continuances without adjudication requires, there was no "continuance without adjudication."  

Even though there  hadn't been an adjudication and even though the case had been continued.