August 18, 2017
The week of August 14, 2017, did not leave us with case law that will change the world. The MNSC put out a case that said a downward departure is okay for playing a minor role in a crim sex case. They also wrote about Batson challenges, which we have covered here before. So we are going to talk about weed smoke. Oh, weed smoke. The very smell that gives law enforcement officers carte blanche to search your Honda Civic with a spoiler. This case is called, State v. Hughes, A16-1481. And while it is unpublished, it seems to clarify an issue that had been wafting, like the smell of..well…marijuana. So here are the facts of Hughes.
Before I do that, I am going to get down non-sequitur lane. Hughes makes me think of Howard Hughes. Who makes me think of Howard the Duck. Who makes me think of my trial this week when the prosecutor talked about Howard the Duck. Which nothing resonates more with juries than 1980’s box office bombs. But back to Mr. Hughes. Hughes got pulled over for failing to signal his turn. The officer spoke to M.B. and when he did smelt a strong odor of marijuana coming from inside the vehicle. He could not tell where it was coming from because it was poltergeist marijuana. The officer did call for backup. Hughes was a passenger said he owned the vehicle and he did not have an insurance card in the vehicle. The officer asked M.B. about the marijuana smell and he said M.B. became very nervous or totally paranoid. M.B. eventually handed the officer a baggie of marijuana. Then he admitted he had knives on him. Multiple knives? What is he, a ninja turtle? The officer found some meth and a marijuana pipe during the search along with the knives. I can’t get past the multiple knives. M.B. was told to knifeless-ly sit on the curb. The officer then turned his attention to Hughes. The officer conducted a pat search on Hughes. The officer found a hard case which eventually revealed contained meth, a meth pipe, and some marijuana. Hughes tried to suppress the evidence. The DC denied the request. He entered into a Lothenbach stipulated fact trial, which leads us to this appeal.
Writing the opinion, Chief Justice Cleary, denied Hughes’s argument but provided valuable nonprecedential guidance on searching occupants in a car when cops smell weed. Justice Cleary was a tad bit more articulate. The Chief Justice said the DC erred because said, the smell of marijuana emanating from a vehicle, on its own, does not provide probable cause to arrest the vehicle’s occupants and conduct a full search incident to arrest. In forming the opposite conclusion, the DC relied on State v. Schultz, 271 N.W.2d 836, 837 (Minn. 1978), State v. Piece, 347 N.W.2d 829, 833 (Minn. App. 1984), and State v. Ortega (Ortega I), 749 N.W.2d 851, 854 (Minn. App. 2008).
However, Schultz the MNSC held the smell of weed allows police probable cause to search the vehicle under the “motor vehicle exception, but not arrest and search the occupants. 271 N.W.2d at 837. Piece said the same thing. Ottega I was no longer good case law.
The court affirmed this court’s decision in Ortega I in State v. Ortega (Ortega II), 770 N.W.2d 145, 151-52 (Minn. 2009), it did so on very different grounds. In a footnote, the supreme court disapproved of this court’s reasoning in Ortega I. 770 N.W.2d at 149 n.2. The supreme court clarified that
(1) an odor of marijuana providing probable cause that a person possesses a noncriminal amount of marijuana does not, in and of itself, create probable cause to trigger a search incident to arrest, and
(2) while “probable cause to arrest” satisfies that search- incident-to-arrest exception, “probable cause to search” does not necessarily trigger an exception to the warrant requirement or lead to the conclusion that a search of a person was otherwise reasonable. Id. (noting that 1976 Minn. Laws ch. 42, § 1, at 101-02 (codified at Minn. Stat. § 152.15, subd. 2(5) (1976)) reduced possession of a small amount of marijuana from a criminal offense to a petty misdemeanor).
Therefore, because a small amount of marijuana is now a petty misdemeanor unless you have more than 42.5 grams, officers can search the car because of the smell, but without more, they do not have probable cause to search a person. They also cannot call it a search incident to arrest because you cannot arrest someone for a petty misdemeanor. A petty misdemeanor is by definition a noncriminal because you cannot go jail for one only pay a fine.
However, Hughes loses because the officer had other safety concerns to conduct a Terry search. It was 2:00 A.M., Hughes was really nervous and the driver of the car had multiple knives. Plural. Like “Edward Scissorhands.” So topical reference there too just like Howard. But the lesson here is clear. For whatever reason, people use cars as mobile pharmacies. So if you are incapable of leaving your drugs at home, tell the officer that smell of weed, if not enough for them to search you to find your meth pipe.
August 10, 2017
The week of August 7, 2017, did not leave us with any landmark law in the State of Minnesota. However, they did leave us with vomiting in an intersection. So let’s look at that. In State v. Jensen, (A16-1747), Ms. Jensen argued that her 2nd Degree DWI should be suppressed because the officer had no basis to approach her car and ask her for identification. Here are the facts:
On February 21, 2015, at 1:41 in the morning, a Hopkins police officer saw a car parked in the middle of the intersection. He noticed both car doors open and a woman, who was later identified as Ms. Jensen, kneeling over her friend, who was laying on the ground. The officer radio’ed for medical help and got out of his car. Ms. Jensen, who I can say definitely was not named Belinda, was helping her friend, who I cannot definitely say was not Julie Nelson, back into the squad car. He saw vomit on the ground and one of the two ladies said, “Fuck, is that the cops?” We will call her Carly Rae Jensen said her friend had too much to drink and she was giving her a ride home. The officer asked both ladies for identification. During this conversation, the officer noticed a strong odor of alcohol coming from her facial region. Facial region? Seriously, officer? I am glad he didn’t smell a fecal odor from the rectal region. He also noticed that Jensen had slurred speech and watery eyes. She was given a preliminary breath test and was arrested. She eventually gave a breath test that had a .20 alcohol concentration.
She challenged her seizure by the officer. The district court denied that and she entered into a Lothenbach, stipulated fact trial, pursuant to Minn. Crim. P. 26.01, subd. 4. This just means she waived her trial rights and stipulated to the State’s evidence. Meaning she didn’t quibble with the facts of the case. Where, if you look at the facts alone she was clearly guilty. She gave a test of .20 and admitted driving. Her argument was the pretrial issue of whether or not she was unlawfully seized. The stipulated facts trial allowed for her pretrial issue to be preserved for appeal after the judge found her guilty on the agreed upon evidence. So the COA took up the appeal issue.
The Fourth Amendment to the United States Constitution and article I, section 10 of the Minnesota Constitution prohibit unreasonable searches and seizures of citizens. U.S. Const. amend. IV; Minn. Const. art. 1, § 10. But “[n]ot all encounters between the police and citizens constitute seizures.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). Persons found under suspicious circumstances are not clothed with a right of privacy which prevents law-enforcement officers from inquiring as to their identity and actions. The essential needs of public safety permit police officers to use their faculties of observation and to act thereon within proper limits. It is not only the right but the duty of police officers to investigate suspicious behavior, both to prevent crime and to apprehend offenders. State v. Hollins, 789 N.W.2d 244, 249 (Minn. App. 2010).
[U]nder the totality of the circumstances test, the more intrusive a request for identification is the more likely that it will be considered an investigative stop and, thus, a seizure.” State v. Pfannenstein, 525 N.W.2d 587, 589 (Minn. App. 1994). Mere questioning by a police officer at a parked car does not constitute a seizure. Harris, 590 N.W.2d at 98; (quotation omitted), review denied (Minn. Mar. 14, 1995). But if a police officer “requests identification and asks the driver to leave a vehicle, the officer must” have “specific and articulable facts which, together with reasonable inferences from those facts, reasonably warrant the intrusion.” LaBeau v. Comm’r of Pub. Safety, 412 N.W.2d 777, 779 (Minn. App. 1987).
With all due respect to Carly Jae Jepsen, which isn’t that close to Jensen, this was not a call me maybe decision. This was one easy. The car was parked in the middle of an intersection at 1:41 A.M. Way after any play at the Hopkin’s child theater would be getting out. They were also in the middle of the street. Jensen didn’t say they were acting out a scene from “Game of Thrones” where they were trying to bring Jon Snow back from the dead. Jensen said her friend was drunk. There is drunk and there is middle of the intersection drunk. It would stand to reason that if one friend was so drunk they were napping and vomiting in the middle of the street; the other friend might have indulged as well. And if that wasn’t enough, one of them expressed other dismay the very sight of the cops.
So she could have violated law three different ways. (1) Parking the car in the middle of an intersection. (2) The time of night, the passenger being drunk, the vomit, the street napping and (3) the expression of dismay, alone, was suggestive of some sort of nefarious conduct. State v. French, 400 N.W.2d 111, 116 (Minn. App. 1987). This was not a show of force. What is the police officer supposed to do here? Look at the situation and say “nothing to see here,” and drive away? The bottom line is the police can’t ask for your license for no reason. But if you are passed out in the middle of a Hopkins road at 1:41 A.M. laying next to a puddle of your own vomit; then the Jensen case says they can.
Jensen loses and there are some lessons here. One, don’t drive drunk. Two, if you are riding with someone who is so drunk you need to look like you are performing an exorcism in the middle of the road, tell that person to take an uber.
July 31, 2017
Things are finally looking up for people who are drunk and have firearms in a close proximity. On July 31, 2017, the COA published a decision of what it meant to possess a firearm in your car while under the influence. The case is State v. Prigge (A17-403). Mr. Prigge was driving in Maple Grove and was stopped by law enforcement. The officer deemed him to be intoxicated as he was likely coming from the Lookout Bar and Grill. During an inventory search of Mr. Prigge’s 1983 Pontiac Trans Am, a loaded handgun was found in the center console. The state charged appellant with several offenses, including carrying a pistol while under the influence of alcohol in violation of Minnesota Statutes section 624.7142, subdivision 1, subsection 4. Prigge moved to dismiss the charge for lack of probable cause. The district court granted the motion saying Prigge was not carrying the pistol on or about his clothes or his person. The State appealed.
Minnesota Statutes section 624.7142, subdivision 1, subsection 4, provides that “[a] person may not carry a pistol on or about the person’s clothes or person in a public place” while under the influence of alcohol. Just for a second let’s talk about how someone carries “on or about” their clothes. Maybe it is like when you tie your t-shirt above the navel because the hot temps and the gun is in the tied off part? But does carrying the pistol in the center console constitute “on or about” their clothes?
“If the Legislature’s intent is clear from the statute’s plain and unambiguous language, then a court interprets the statute according to its plain meaning” without engaging in further construction. State v. Haywood, 886 N.W.2d 485, 488 (Minn. 2016); Minn. Stat. § 645.16 (2016) (articulating canons of statutory construction). Section 624.7142 does not define the term “carry.” Where a term is undefined in the statute, we can ascertain the meaning by looking at the dictionary definition of the term. Meleyco P’ship No. 2 v. City of West Saint Paul, 874 N.W.2d 440, 444 (Minn. App. 2016). “Carry” is defined as “[t]o hold or support while moving; bear,” or “[t]o hold or be capable of holding.” The American Heritage Dictionary of the English Language 285 (5th ed. 2011).
In State v. Larson, the court held that a plain reading of the word “carry” includes transporting or conveying a pistol on one’s person, even if the pistol is unloaded and in a case. State v. Larson, 895 N.W.2d 655, 658 (Minn. App. 2017). Larson held that section 624.7142, subdivision 1, subsection 4, prohibits carrying a pistol in a public place while under the influence of alcohol when the pistol is unloaded and hand-carried in an enclosed and secure gun case. Id. at 660. Larson stands tall against drunk carrying. So Prigge loses, right? No, because Larson talks about when there is no daylight between the drunk person and gun. Here, Prigge had it in the center console. He was not stumbling around with his secure gun case. So they looked a different statute.
They read our statute, 624.7142 in conjunction with its companion statute, Minnesota Statutes section 624.714 (2016). Section 624.714 prohibits possession of a firearm without a permit in a public place and provides that:
A person . . . who carries, holds, or possesses a pistol in a motor vehicle . . . or on or about the person’s clothes or the person, or otherwise in possession or control in a public place . . . without first having obtained a permit to carry the pistol is guilty of a gross misdemeanor. A person who is convicted a second or subsequent time is guilty of a felony.
Id., subd. 1a (emphasis added).
In a battle of the 624’s, here is the difference. 624.714 broadly prohibits possession or control. Look at the language… otherwise in possession. They even talk about motor vehicles. Whereas 624.7142 only talks about clothes on or about. So a tied up hypercolor shirt. Because section 624.7124 uses different language than section 624.714, we must assume that the legislature intended them to apply to different conduct.
The court refuses to engraft section 624.714’s broad prohibitions into section 624.7124. That is good because courts that are drunk with their own engrafting make a mockery of all of those who have engrafted before. Because there was no physical nexus between Prigge and his gun, he wins. So the crystal clear lesson here is when the sun is out, and the Leinie’s flows, the guns should be out of your clothes.
July 26, 2017
Last week the Supreme Court did my client a solid but the overall impact will be not widespread. July 26, 2017, the Supreme Court wanted to have their tentacles stretch a little further. They reviewed a case called Kirby. Kirby posthumously challenged the drug sentencing laws that changed on August 1, 2016. This Kirby is still alive. That was a lame Puckett joke. But for the purposes of this blog, we are going to double down on that lame joke and keep going. The Twin’s Centerfielder who often plastered himself against plexiglass was sentenced to 161 months in prison for first-degree possession of methamphetamine. While he was appealing his case the MN legislature passed the Drug Sentencing Reform Act (DSRA). Amongst other things, the DRSA changed the sentencing guidelines and 3rd overall pick in the 1982 draft asked to be resentenced under the new guidelines. The DSRA reduced the presumptive sentencing range for 5’8”
While he was appealing his case the MN legislature passed the Drug Sentencing Reform Act (DSRA). Amongst other things, the DRSA changed the sentencing guidelines and 3rd overall pick in the 1982 draft asked to be resentenced under the new guidelines. The DSRA reduced the presumptive sentencing range for 5’8” centerfielder’s offense from 138 to 192 months to 110 to 153 months. See Act of May 22, 2016, ch. 160, § 18, 2016 Minn. Laws 576, 590-91; Minn. Sent. Guidelines 4.C (2016).
The court wanted to be very clear that this case was not about retroactivity. Retroactivity doesn’t mean exercising to Richard Simmon’s “Sweating to the Oldies.” It means that if a case is important enough they apply the holding of the case to similarly situated defendants even if final judgement had been entered in their case. So basically everyone who was sentenced under the old guidelines will not get this benefit.
This case is about amelioration. The amelioration doctrine applies to cases that are not yet final when the change in law takes effect. See State v. Coolidge, 282 N.W.2d 511, 514-15 (Minn. 1979). So the question becomes does the amelioration doctrine (“AD”) apply to the guy who got hit in the face with Victor Martinez. The MNSC acknowledges that they have never used the AD before. However, they say that four previous cases have analyzed AD. In the interest of time, let’s just look at two of those cases. Since we already cited Coolidge, let’s just stay there. Coolidge is about sodomy. He was convicted of it and sentenced to ten years in prison. Before the final judgment was entered the legislature changed the maximum penalty sodomy statute from 10 years to 1. The court conducted a similar analysis as they are doing now for the guy McDonald’s offered a meal named after him called a “Puck Pack.” The court concluded, “in light of the common law and the weight of greater logic, the defendant should have been sentenced under the present law, which provides a maximum prison term of 1 year.” Id.
In contrast to Coolidge, they looked at Edstrom v. State, 326 N.W.2d 10 (Minn. 1982). Edstrom was another case involving criminal sexual but the law lowered the max penalty for the sentence from 30 years to 20. There was a clause in that case that said, “crimes committed prior to the effective date of this act are not affected by its provisions.” Act of June 5, 1975, ch. 374, § 12, 1975 Minn. Laws at 1251. Edstrom’s act occurred in March so it did not impact him. So when looking at the 2-time World Series Champion’s case in contrast with the other two cases, the court said the could resentence Shane Mack’s buddy under the new guidelines if:
(1) the Legislature made no statement that clearly establishes the Legislature’s intent to abrogate the amelioration doctrine; (2) the amendment mitigated punishment; and (3) final judgment had not been entered as of the date the amendment took effect.
The effective-date provision for DSRA § 18 states, “This section is effective the day following final enactment.” That language was almost identical to the language of Coolidge. There is no language in DSRA § 18 that resembles the language at issue in Edstrom. The Legislature expressly stated in other sections of the DSRA that those sections only “appl[y] to crimes committed on or after” the effective date. See Act of May 22, 2016, ch. 160, §§ 1-10, 15-17, 2016 Minn. Laws at 576-85, 588-90. The absence of such language from DSRA § 18 is telling; it signals that the Legislature did not intend to abrogate the amelioration doctrine. See Rohmiller v. Hart, 811 N.W.2d 585, 590-91 (Minn. 2012).
The State launched a bunch of arguments including the language of the bill’s author. Senator Ron Latz, stated: “There’s stuff I wanted that’s not in here. I wanted retroactivity—the opportunity for current incarcerated persons to be able to petition, to bring a motion to the district court to get resentenced under any new guidelines that take effect . . . . I didn’t get [that].” Hearing on S.F. 3481, Sen. Judiciary Comm., 89th Minn. Leg., Apr. 8, 2016 (video) (statement of Sen. Latz), at 4:33:00-4:33:30.
However, the court says this applies to retroactivity, not amelioration because that is what he actually said. I am not in the business of making the state’s arguments for them, but I would argue no one, ever, uses the word “amelioration.”
The Court concluded, the guy who never lost a ball in the white dome meets the three requirements of the amelioration doctrine. First, no statement by the Legislature clearly demonstrates an intent to abrogate the doctrine. Second, the DSRA mitigates punishment. Third, Number 34 has not had final judgment entered in his case. Accordingly, the guy we named my childhood dog after must be resentenced under the DSRA-amended sentencing grid.
This was based on Coolidge-Edstrom and under common law, the well-settled principle is that where criminal law in effect is repealed, absent a savings clause, all prosecutions are barred where not reduced to a final judgment. It is also true that a statute mitigating punishment is applied to acts committed before its effective date, as long as no final judgment has been reached. The rationale for such a rule is that the legislature has manifested its belief that the prior punishment is too severe and a lighter sentence is sufficient. Nothing would be accomplished by imposing a harsher punishment, in light of the legislative pronouncement, other than vengeance. Coolidge, 282 N.W.2d at 514-15 (footnote and citations omitted).
So, if the new guidelines affected you and you appealed prior to August 1, 2016, you win. Sort of like Kent Hrbek throwing Ronnie Gant off of first base.
July 20, 2017
This blog is dedicated to Sheila Crain, who did a massive amount of work on this case and I wish she could have received the news of this appeal in the office.
A case that I tried was reviewed this week by the MNSC on July 19, 2017. Getting a case you tried reviewed by a higher court is almost always a bad thing because that means you lost. In this case, justice delayed is justice denied because Mr. Smith went to prison, but he did get out early and now he has no five-year conditional release, so that is something. Here is the history of this case. Mr. Smith was charged with Felony DWI stemming from an incident that happened on February 13, 2010. He was charged with a Felony because he had three prior DWI’s in a ten-year period. The one conviction that is the point of contention is a gross misdemeanor criminal-vehicular operation from 2005. Before we get there, Mr. Smith’s case was so old, he launched several challenges to the DWI.
The first challenge was the source code. Back in 2010, breath tests were given by a machine called the Intoxilyzer 5000EN. These machines used a source code to calibrate the breath tests. Defense attorneys started requesting the source code, which only experts could decipher to determine if the machine was working correctly. Not surprisingly, the company that manufactured the machine did not want to give up proprietary information. The State fought that they had to give up the source code. Almost every DWI attorney in MN filed a challenge to the source, which resulted in a consolidated appeal of cases like Mr. Smith and 4,000 defendants. In 4 to 3 opinion, the MNSC said that the machine was considered reliable so no source code for the defense. So Mr. Smith lost that challenge and the State got new technology to conduct breath tests.
The second challenge came in the form of constitutionality. While people like Mr. Smith were challenging the source code the SCOTUS decided Missouri v. McNeely, in April of 2013. That case held, in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. McNeely, 133 S.Ct. 1552 (2013). Which means the cops need to get a warrant to conduct a blood test. Defense attorneys argued that this holding applied to urine tests and breath tests as well. Our Supreme Court said McNeely applied to urine and blood tests in two cases called Thompson and Trahan. However, in a case called, Bernard, the MNSC said you could consent to a warrantless breath test because breath tests are far less intrusive than a blood or urine test. When Mr. Smith made a challenge, he lost because of an MNSC called Brooks, where the Court said Brooks consented to blood or urine tests because Brooks had prior DWI’s. So Mr. Smith lost his Brooks challenge, which has been overruled in part by Thompson or Trahan but would have upheld by Bernard. So that is as crystal clear as Pepsi. So two challenges down and that got us to trial.
We had the trial in November of 2014. Almost five years from when he was charged. In a first degree DWI, one of the things the State has to prove is the fact that the accused has three prior offenses. As you can imagine, if a jury hears that someone has been guilty of DWI three times before and they are on trial for a fourth, they tend not to give that person the benefit of the doubt. So by stipulating to the priors, you can relieve the state of the burden of proving the priors while simultaneously keeping that information from the jury. So we stipulated to the priors, but we objected to the court using the 2005 CVO as a prior. The court ruled against us, but that paved the way for the appeal.
We had the trial and we grilled the officer about using the machine that conducted the test. Mr. Smith’s test was .09 so he was barely over the legal limit. So a little user error with the machine could equal reasonable doubt. There was not any driving conduct that gave rise to the under the influence of alcohol count. So we more worried about the over .08 result. The State did play a squad video over our objection of Mr. Smith sleeping while being driven to the station. I will not admit that was effective, but we lost. From all that litigation, the sole issue for appeal was the 2005 CVO being used to enhance to a Felony.
In the current iteration of the Felony DWI statute, Mr. Smith’s 2005 DWI is covered as a prior qualified impaired. Minn. Stat. § 169A.03, subd. 22 (2016), which consists of “prior conviction[s] under:” (2) section 609.21 (criminal vehicular homicide and injury, substance- related offenses), subdivision 1, clauses (2) to (6). That language would have included Mr. Smith’s 2005 conviction. However, in the year Mr. Smith was convicted, 2005 his conviction was not a “prior impaired driving conviction.” Therefore, the majority says because it was not listed, it should not count. The State, for whatever reason, disagreed. The State argued it was similar to other offenses on the list. The majority says that is like going to a party where there is a guest list and saying that you are similar to someone on the list. You don’t get to go under the velvet rope to go inside. The majority did not really use those terms, but that was the gist.
Mr. Smith was ever so kind to suggest ways that the Legislature could have included the charges.
First, it could have referred to all prior criminal-vehicular-operation statutes by section and year and listed the specific statute under which Smith was convicted, Minn. Stat. § 609.21, subd. 2b(6), as a qualifying offense. Second, it could have cataloged the qualifying offenses based on the underlying criminal behavior, such as by saying, as applicable here, that “prior impaired driving conviction[s]” includes “any conviction of criminal vehicular operation resulting in bodily harm,” without specifying certain statutory provisions and years. Finally, the Legislature could have added a broader residual clause to the statute, something it has done in a number of other statutes. Then to show off they dropped some latin
Then to show off they dropped some Latin, “expressio unius generally reflects an inference that any omission in a statute are intentional.” And also signals the end of Quidditch games. After the state got expressio’ed they got a little upset and resorted to the absurd results argument. That basically means I don’t care what the law says because if you follow it will be absurd. That argument is akin to saying something like, “well, you could do worse” at bar close. The court adroitly points out that they have only reversed a decision because of absurd results one time before and they were not going to do that here. In short, even assuming the absurdity canon is available in criminal cases, this is not the “exceedingly rare case” in which to apply it. Schatz v. Interfaith Care Ctr., 811 N.W.2d 643, 651 (Minn. 2012). So Mr. Smith won. No more 75-month sentence in prison. So cheers to Mr. Smith. ** If he is off a no drink restriction** Cheers to Sheila Crain and cheers to expressio unius. We will celebrate to a super clean edit of “All I do is win.” Seven years later.
July 14, 2017
We are back after a week hiatus, although some would indicate week was spelled incorrectly. On July 12, 2017, the MN Supreme Court reviewed a case about the rules of evidence applying to a restitution hearing. As exciting as that subject could potentially be; we decided to skip it to talk about the justifiable taking of a life. On July 10, 2017, the MN COA published that case. It is called State v. Pollard, (A16-1005). The case is not about a former TE for the Indianapolis Colts. It is about a woman named Natalie who took someone’s life. Since this blog does not celebrate or condone life taking we will quickly go through the facts.
Pollard had a boyfriend with the initials, O.N. She said that O.N. was attempting to enter her townhouse. When she saw him, she let him in. She went downstairs with him to help him retrieve his things. She originally said that O.N. brought a knife with him and they fought and he got on top of her. She was able to move him and he fell and she called the police. Later, she said she brought the knife downstairs with her because he frequently came to the house angry. She held the blade behind her back and swung it at him when he hit her. She did claim he got on top of her and the knife flew from her hand. She did admit that she threw the knife in the garbage. She did admit that she did not know if she cut or stabbed O.N. but it was because he would not stop attacking her.
The issue, in this case: Is did the court use the wrong CRIMJIG?
A CRIMJIG is an abbreviation that stands for Jury Instruction Guide. I will not insult the intelligence level of blog readers by explaining what Crim means. JIG’s are read to the jury before closing arguments and the jury gets to take a copy into deliberations. The JIG’s contain the applicable law they are supposed to follow even if they do not agree with that law. The law is broken down into the elements of the offense. Therefore, there is a lot of attention paid to what law the jurors are supposed to follow. The majority of the time, the JIG’s are taken directly from the standard JIG language. Occasionally, the lawyers will craft their own versions and the Judge has to decide what will actually be used. The district court has “considerable latitude in selecting jury instructions.” State v. Peltier, 874 N.W.2d 792, 797 (Minn. 2016). The COA reviews the jury instructions in their entirety to determine if they “fairly and adequately explain the law.” Id.; State v. Kuhnau, 622 N.W.2d 552, 555-56 (Minn. 2001). So let’s look at self-defense versus justifiable taking of a life.
A person can use reasonable force to defend themselves or others. Minn. Stat. § 609.06, subd. 1(3). There are four elements of self-defense under section 609.06, subdivision 1(3), are, absent legalese:
(1) You can’t start it. So the whole “they started it,” argument championed by 5 year-olds actually matters. (2) You need to actually believe you are imminent danger of bodily harm. Someone can’t send you a threatening emoji and then you hit them. (3) That belief needs to be reasonable. Duh. (4) You need to retreat if you can safely do so. You can’t chase someone down who struck you after asking you the capital of Thailand and then ran away.
A person may intentionally take a life when it is “necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor’s place of abode.” Id. So if you think you are going to be killed or if someone is acting feloniously in your house, but only if the following factors are satisfied:
(1)The killing must have been done in the belief that it was necessary to avert death or grievous bodily harm. (2) The judgment of the defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances. (3) The defendant’s election to kill must have been such as a reasonable man would have made in light of the danger to be apprehended. State v. Edwards, 717 N.W.2d 405, 413 (Minn. 2006). So if you think you are going to die, that thought of death is reasonable, and a reasonable person would have done the same under the circumstances.
In State v. Carridine, 812 N.W.2d 130, 143-44 (Minn. 2012), the MNSC stated it is an error to use the justifiable taking of a life instruction instead of self-defense in a case when the defendant claims the death was unintentional. That is what happened here. The victim in this case died, but Pollard’s argument was not that she was trying to kill the victim. She was trying to use self-defense and victim died as a result. The intentional taking of a life is only justified where the actor believes he or she, or another, is exposed to “great bodily harm or death.” Minn. Stat. § 609.065. Because Pollard did not claim that she intended to kill O.N., an instruction based on Minn. Stat. § 609.065 was inappropriate as it required the jury to find that appellant feared great bodily harm or death. Essentially, the jury was instructed that Pollard had to believe she was exposed to great bodily harm or death. What the jury should have been instructed was that Pollard used a reasonable level of force that she reasonably believed was necessary in resisting an offense against a person. Minn. Stat. § 609.06, subd. 1(3).
The jury may have believed appellant’s statements to the investigators that she feared that O.N. was going to hit her, but rejected her statements that she feared O.N. would greatly harm or kill her. Whether she acted reasonably in response to that fear is a question for the jury. See State v. Glowacki, 630 N.W.2d 392, 399 (Minn. 2001) (requiring jury to find that defendant believed that force was necessary and that the level of force used was reasonable to prevent the harm feared).
So here is the deal. Try not to take anyone’s life and here are
some a Marcus Pollard highlight for you.
June 30, 2017
Major criminal law decisions from Minnesota higher courts have been few and far between of late. So we are going to look at yet another unpublished case. Meaning that if you cite this case at a cocktail party to someone named Todd, Todd could easily counter you by saying that case has precedential value. Also, who has cocktail parties besides Real Housewives, who are not actually housewives and not actually real? With that preamble behind, we can focus on inevitable discovery. Which essentially means, sure your mom violated your privacy by snooping through your sock drawer to find the Jenny McCarthy Playboy mag, but she was going to see it anyway because you left your Showgirls tape in the VCR. This case is State v. Pimental, A16-1458 was decided June 26, 2017. This case involves an individual whose surname is named after a Pepper. Here are the facts:
A Minneapolis police officer got a hot tip from a known and reliable tipster. This narc said there was going to be a large quantity of methamphetamine delivered to a particular intersection of Minneapolis. The facts were silent if the intersection contained a Hardees. The Tattletale said a named Luis would be driving a silver van and gave the license plate. The officer conducted surveillance of the intersection and saw a silver van. The driver of the silver van got out and went into a red SVU. The officer communicated with other officers to seize the red SVU. When other officers pulled up behind the SVU, Pimento got out and started to walk away. He likely wanted a Frisco burger. But the officer had a different idea and told him to lay down on the pavement. He did not accept the invitation to do likely because he didn’t want to sully his dockers and he walked away again. The officer grabbed him and handcuffed him and did a pat search. The officer found felt a hard object in his coat. The officer did not know what the object was and Pimento told him it was cigarettes. Unless they were candy cigarettes they did not pass the density test so he removed the item which was a small square and 15 grams of meth. They searched the car and found 460 more grams of meth. Pimento and his friends Cayenne and Serrano were arrested and charged with possessing a lot of meth.
Pimento challenged the search saying the officer exceeded the scope of the patdown search by removing an item from Pimento’s pocket without believing it was contraband. The district court agreed with Pimento so Pimento wins right?! No, Pimento loses because of the inevitable discovery doctrine. He appealed the decision.
(The United States Supreme Court adopted the inevitable-discovery doctrine as an exception to the exclusionary rule to ensure that the “exclusion of evidence that would inevitably have been discovered” does not “put the government in a worse position, because the police would have obtained that evidence if no misconduct had taken place.” Nix v. Williams, 467 U.S. at 444, 104 S. Ct. at 2509. The state bears the burden of establishing the exception by a preponderance of the evidence. State v. Licari, 659 N.W.2d at 254. The state may not rely on speculation but, rather, must base the exception “on demonstrated historical facts capable of ready verification or impeachment.” Nix v. Williams 467 U.S. at 444 n.5, 104 S. Ct. at 2509 n.5. Essentially, so what the search was illegal, the officers would have been able to find anyway so it doesn’t matter. Think of Jenny McCarthy gets found because you left Elizabeth Berkely in the VCR.
The district court said here the officers would have found the 460 grams in the Red SVU and the Red Hot Chilli Peppers would have all been arrested. When you are arrested you get searched and during that search, they would have found the scale and the meth in the cigarette pack. Pimento cites State v. Ortega, 770 N.W.2d 145 (Minn. 2009), for the proposition that the officers must have probable cause that he, in particular, was engaged in criminal activity. See id. at 150. Arguing he did not commit a crime because the drugs were found in a place where he was not sitting. The COA says, that Pepper is arguing about Reasonable Doubt. Here, all the officers needed was probable cause. Probable cause to arrest exists if a “person of ordinary care and prudence, viewing the totality of circumstances objectively, would entertain an honest and strong suspicion that a specific individual has committed a crime.” Id. at 150.
The court says there was PC here. First, from narcy narc a lot. He had provided tips in the past and his tip was proven right by future actions. Second, the behavior of Pimento was similar to the behavior that a drug transaction was going down. Third, the officers found 460 grams of meth in a Tupperware container in a car that Pimento just left.In a similar case in which three persons occupied a vehicle in which cocaine was found, the United States Supreme Court stated, “We think it an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine” such that officers could arrest any one of the occupants. Maryland v. Pringle, 540 U.S. 366, 371-72, 124 S. Ct. 795, 800 (2003). Similarly, in Ortega, the Minnesota Supreme Court stated that, for purposes of probable cause, “contraband that is in plain view in a motor vehicle supports a rational inference that all the vehicle occupants were aware of the contraband and had the ability and intent to exercise dominion and control over the contraband.” 770 N.W.2d at 150 (citing County Court of Ulster County v. Allen, 442 U.S. 140, 164-65, 99 S. Ct. 2213, 2228-29 (1979)).
These facts are stronger than those cases. Pimento loses. His drugs come into evidence because someone left some the Showgirls cassette in the VHS in the Red SUV. So be kind and rewind and don’t set yourself up to be inevitably screwed. In honor of uppers and Jesse Spano. Here she is on some uppers. Warning *** The scene is so well acted that you feel high too ***
June 23, 2017
On June 19, 2017, the Minnesota Court of Appeals published a decision that involves a right to counsel before an implied consent proceeding. The implied consent is the process by which the State attempts to take a driver’s license in a DWI case. The case is called, State v. Hunn, A16-2001. Here are facts:
On February 21, 2016, at 1:09 A.M., a Mower County Sheriff pulled over Mr. Hunn. Mr. Hunn apparently did not stop at a stop sign. The deputy noticed that Hunn’s eyes were bloodshot, glassy, and had abnormally dilated pupils. The deputy also noticed that Hunn was agitated, spoke abnormally fast and shared odd information. Abnormally might have been the deputy’s word of the day on February 21, 2016. The deputy thought Hunn was stoned. Hunn failed two field sobriety tests and took a preliminary breath test, which revealed an alcohol concentration of .024. Hunn was placed under arrest for controlled substance DWI. Then Hunn consented to a search of his car, because why wouldn’t he want his Geo Metro ransacked? The deputy found a drinking straw that had trace amount methamphetamine. I would blame Hardees for that. The deputy took Hunn to the station and asked him to take a urine test. Hunn agreed and the test was sent to the Bureau of Criminal Apprehension for laboratory testing. The deputy did not read Hunn the implied consent advisory and because he didn’t read it, Hunn did not get advised to his limited right to speak to an attorney before testing. The deputy received the results in April and it contained an alcohol concentration of .04 and the presence of methamphetamines and amphetamines. Again, blame Hardees. Hunn was charged with DWI and move to suppress the evidence based on the officer’s failure to read the implied consent and the invalidity of Hunn’s consent to testing. The district court agreed with Hunn and suppressed the test. The State appealed.
In granting Hunn’s motion the district court relied on language from the implied consent law, which provides that an individual “must be informed…that the person has the right to consult with an attorney, but that this right is limited to the extent that it cannot unreasonably delay administration of the test. Minn. Stat.§ 169A.51, subd. 2(a)(4) (2014). The district court also cited Friedman for the following propositions: (1) a driver has a right to consult an attorney before deciding whether to submit chemical testing under the right-to-counsel in article 1, section 6 of the Minnesota Constitution and (2) a driver must be informed of this right and a police must assist in its vindication.
The state argued Friedman was inapplicable here because Hunn was not read an implied consent advisory and, therefore, did not face immediate revocation of his driver’s license. The COA agreed because Hunn never faced the possibility of immediate sanctions under the implied-consent law when deciding whether to consent to the urine test. See Tyler v. Comm’r of Pub. Safety, 368 N.W.2d 275, 280 (Minn. 1985).
In Friedman, the commissioner of public safety issued Friedman a notice and order of revocation of her driver’s license based on her refusal to take a breath test authorized by the implied-consent law. 473 N.W.2d at 829. The Minnesota Supreme Court granted review to decide whether Friedman’s right to counsel attached upon the police officer’s request for chemical testing. See id. In deciding this issue, the supreme court distinguished its right-to-counsel analysis in Nyflot v. Comm’r of Pub. Safety, 369 N.W.2d 512, 515-17 (Minn. 1985), where it had held that the right to counsel under the Sixth Amendment to the United States Constitution does not attach at the time a police officer requests chemical testing. Id. at 832. Instead, the supreme court held that, under the right-to-counsel clause in article I, section 6 of the Minnesota Constitution, a driver asked to submit to chemical testing as part of the implied-consent process is at a “critical stage,” triggering a limited right to counsel. Id. at 832-33.
The court said the testing done under Friedman, was for the implied consent so the limited right to counsel attaches. In comparison with the testing in Nielsen, where this court reasoned that “[t]he process of chemical testing in this case was merely an investigatory stage which necessarily preceded the decision to prosecute [criminal charges],” and “Nielsen faced no immediate revocation of his driver’s license if he refused to take the blood test.” Id. at 215.
So this is what the court means. If someone is arrested for DWI and they are drunk they get asked to take a breath test. Refusing a blood and/or urine test is not a crime under Tbompson and Trahan. So unless they get a warrant, which they do not want to do, they make you take a breath test. A breath test immediately tells you the result so that has immediate criminal sanctions. Because they have immediate criminal sanctions, the officer has to read the implied consent which informs the person of their right to speak with an attorney.
On the other hand, if someone goes to Hardees and gets meth in their straw and the officer suspects them to be under the influence of meth, then they take a urine/blood test. You can’t see drugs in breath unless you arrest Snoop Dogg. Blood and urine tests need to be confirmed by the BCA so the person does not get immediately charged. Therefore, no immediate criminal sanctions. Because of no criminal sanctions, the officer does not need to read the implied consent so the person isn’t advised of their right to talk to an attorney. Assuming the attorney is not Lionel Hutz would tell them to refuse that test because you can and make them get a warrant. But the COA said no attorney needed. This will go up.
June 16, 2017
Another slower week of June 12, 2017, in the MN courts of further review, while the country is awaiting two deadlocked juries. Often referred to as a hung jury. Bill Cosby and his quaaludes and Officer Yanez in the death of Philando Castile. You are on the wrong blog if you want a detailed breakdown of either trial.
It impossible to give an unbiased view of a trial without sitting through the whole thing. My knowledge of the Castile case consists of listening to a podcast called “74 seconds.” My knowledge of the Cosby case is no different than anyone else when accusers starting coming out of the woodwork. Similar to when Tiger Woods’s mistresses started to coming forward to tell classy tales of “meet-ups” in the parking lot of TGI Fridays. As a direct result of the Cos’s unscrupulous behavior, I am also on a jello strike. This is clearly not respecting the presumption of innocence but for a long time, Jello needs to be sent a message. * The Jello strike is starting now because I have to confess I recently consumed some butterscotch pudding. *
So back to the lecture at hand let’s talk about hung juries. Don’t listen to what your co-worker, Dale, thinks a hung jury is; because at best he is probably wrong and at worst it could result in low-grade sexual harassment. So here is a non-Dale, nonjello overview.
A criminal trial in the State of Minnesota the number of total jurors is different. In a Felony trial, there are 12 jurors. In a misdemeanor or gross misdemeanor, you get 6. Petty Misdemeanors do not get a jury because the maximum sentence for a petty is a $300 fine. No jail. So if you want to contest your speeding or parking ticket you will not get a jury of your peers to “totally see it your way,” because “the Ford Focus next to you was going just as fast or faster,” and you recorded the cop at your window on your Samsung tablet. So a felony gets 12, gross misdemeanor or misdemeanor gets 6 and a petty misdemeanor gets none. They get a trial to the judge.
While picking a jury, each side gets unlimited challenges for cause. A challenge for cause is simply when it is determined that a juror can’t be fair. That is why jury selection is such a big deal in high profile cases. One would assume that every single person has heard about Cosby or Philando Castile, but people making those assumptions have no idea about Call of Duty. But it is not just hearing or reading about the case, it is forming an opinion that makes you so biased for one side that you cannot be fair. If you had a family member who was a victim of a similar crime or if Bill Cosby personally told you to pull up your pants, it would be hard to be fair. Challenges for cause become contagious, once some jurors see other jurors get excused for reasons of fairness, sometimes the floodgates will open and other people will say similar things. Most high profile trials will have individual voir dire. That means the juror will be questioned not in the presence of other jurors which allows a better opportunity for the juror to speak freely and eliminate the chance that a juror will say something that will pollute the pool. An example of that is one time a juror was asked if they knew my client. The juror responded, “I know him because his brother killed my brother.”
Once it is determined that each juror is qualified to serve then come the peremptory challenges. In a non-murder case, the defense gets 5 and the State gets 3. These strikes can be made without an explanation but they cannot be made on the basis of race, gender, religion, sexual preference so on and so forth. You can’t discriminate when striking those jurors otherwise it could lead to a Batson, challenge. We won’t go any deeper on this right now because valuable space has already been used talking about butterscotch jello. Alternate jurors are picked in the event that one juror becomes or sick or has to deal with a crisis. There is almost always one alternate and depending on the length of the trial there can certainly be more. Being in alternate in a trial is the worst. You get to sit through the whole thing and then told you can’t deliberate. My favorite thing that judges will say is when they announce who the alternates are is when they say, “Now we have come to the part of the trial I like the least. Excusing the alternates. This status as an alternate is not because you have been determined because you are the least qualified to deliberate…..”
Verdicts need to be unanimous. Both sides can waive that, but that makes no sense at all. So in a Felony, it needs to be 12-0, guilty or not guilty. Misdemeanor and grosses, it needs to be 6-0. So it can be an 11-1 and it doesn’t matter it will be the same result, a hung jury. Both the Cos and Yanez have been out for four days so it certainly appears they are headed in that direction. In a smaller, less serious, trial, judges will let them declare a hung jury sooner. In both of these trials which lasted weeks and involve a litany of witnesses and experts, judges let them work longer. My guess is both are very close to being done. Possibly could be declared today. There is only so much to talk about in a trial where the actual evidence only lasted about a week, and if one or more people have dug in, there is really no changing their mind.
So what happens in a hung jury is declared? Nothing. The State can retry the case which often happens multiple times. Or the State can decide not to go forward. Sometimes plea agreements can be worked out, but the practical effect is it like the trial never happened. However, the media will go nuts and each side is acutely aware of their strengths and weaknesses. In my experience, both sides think they did everything mostly right so major changes do not happen between trial 1 and trial 2. It is mostly a hope that a jury will see it their way next time.
I want to close with a quick jury story. One time a bailiff working with a jury on a case I had told me after the trial about one juror He said during a break this jury was telling a story in front of the entire jury. The story was that when he was younger, the juror and his brother loved to stay up late and watch the “Jerry Springer Show.” I would have liked to know prior to trial but in the juror’s defense, I never asked about ole Jer. But here is where it gets a little weird. It is hard work to stay up late when you are tired and only so much Mellow Yellow will do. So they devised a plan. The plan was that they would go outside and grab the electric fence. They would shoot voltage into their bodies that would provide them with the energy necessary to stay up and chant, “JERRY! JERRY!” when someone throws a chair. That person got to decide guilt or innocence. Justice.
June 8, 2017
On June 7, 2017, the Supreme Court addressed the appropriateness of the downward departures, State v. Rund, A16-1033. Rund pled guilty to Terroristic Threats after sending a series of tweets to law enforcement. Always a better idea to direct your anger to @smokeythebear. The district court gave Rund a mulligan for tweeting recklessly by making his felony a gross misdemeanor. The COA affirmed that decision. The State of Minnesota appealed that decision and the Supreme Court took the case up. There are two types of departures.
The first is a dispositional departure. This is when someone with a presumptive sentence that says they should go to prison but instead they get probation instead. The court cannot departure unless substantial and compelling factors are present. For a dispositional departure, the court used what are called the Trog Factors. Those factors determine whether or not a defendant is particularly amenable to probation. Those factors include; age, prior record, cooperation/attitude in court, remorse and support from friends and family. For dispositional departures, the court needs to look at offender-related circumstances.
The second type of departure is a durational departure. Duration means time so this means that a court will still give prison time but less. In order to get this type of departure, the court needs to find that the crime was significantly less serious than the typical crime. So if someone got charged for coming into someone’s house with a crowbar that would be a first-degree burglary with a weapon and a person with no criminal history is supposed to go to prison for 48 months. However, if the person used a Mr. Freeze ice treat as a weapon, you could argue that a Mr. Freeze makes the crime significantly less serious and therefore, the defendant should receive a smaller prison sentence. I should stop here to note that a Mr. Freeze is probably not a weapon, but if it were frozen it could be. Minn. Stat.§ 609. 02 subd. 6, a dangerous weapon” means any firearm, whether loaded or unloaded or any device designed as a weapon and capable of producing death or great bodily harm. So, yes, it could be. And, yes, it is hot. And, yes, they are delicious. So with that background here are the facts.
Rund was driving and got pulled over by a trooper. It was not the first time the trooper had pulled Rund over. There was a disagreement and yada, yada, yada the trooper found marijuana in his trunk. Rund’s stash was bogarted and Rund went home, began drinking and began drunk tweeting. This blog does not condone Rund’s messages but for the purposes of clarity he said the following:
- @StPaulPoliceFdn3 dude its f*cked up im getting so pissed out here literally thinkin about just startin to hunt and kill cops
- @sppdPIO4 f*ck you st paul police im gonna kill 5 police officers today
- @StPaulPoliceFdn im lookin for [Z.] boi and whichever trooper pulled me over lastnight gave me a ticket for goin 68 in a 60
- f*ck the @StPaulPoliceFdn they don’t call me the cop killer for no reason
- throw a grenade in the room, watch all you coppers kaboom
Rund pled guilty to Terroristic Threats which is a Felony. At sentencing, his attorney asked the court to sentence Rund to a gross misdemeanor instead because Rund was remorseful, drunk and threats on social media are less serious and he had no prior felonies. Amongst other things the district court said, “To give you a felony sentence . . . at your age . . . I don’t feel in balance that that’s in the best interests of society. We got too many people on probation [for] felonies already, and . . . I can accomplish much of the same thing on a . . . durational departure on a gross misdemeanor.” And concluded with this: “Basically, young and dumb. Pretty good kid who did a bad thing, and you affected a lot of people, but you got a lot of promise in your life, too. Okay. That’s what I see when I shake it all up. That’s really why the Court is doing what I am doing.”
The MNSC said this was a durational departure from a felony to a gross misdemeanor. (“A pronounced sentence for a felony conviction that is outside the appropriate range on the applicable Grid, including a stayed or imposed gross misdemeanor or misdemeanor sentence, is a departure from the guidelines.”); accord State v. Cizl, 304 N.W.2d 632, 634 (Minn. 1981). Here, the district court relied on Rund’s age, remorse, his drunkenness, lack of substantial capacity and amenability to probation and treatment. Those are dispositional departure factors, not a durational departure. They said Rund’s mental state did not matter. Rund’s conduct fits squarely within the statute’s prohibition against making threats with a reckless disregard of the risk of causing terror, his conduct was not significantly less serious than the typical case. Rund’s door got slammed shut. But the SC decided to be nice and see if there was any legal basis to find a departure. Actually, the law says they have to do that.
The first thing they looked was remorse. A defendant’s remorse generally does not bear on a decision to reduce the length of a sentence,” but “cases may exist in which the defendant’s remorse could relate back and be considered as evidence of remediation that makes the conduct significantly less serious than the typical conduct underlying the offense . . . .”State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016). The court here said Rund’s confession, which was made after he was in jail. The same principal of saying “it is easy to grin when your ship has come in….” The court seems to suggest that if Rund said “@StPaulPoliceFdn I aint mad at cha,” that would be showed remorse. So not remorseful.
The second argument was if the tweets were mitigated because it was social media, and you know…people act like horrible trolls on social media. The court talked about the anonymity of social media making it actually worse because you don’t know who is threatening. Also, that he had five tweets to which I would say…duh it was a tweet storm. Also, very specific threats like grenades and the tweets indicated he would give multiple officers. All this adds up Rund losing and getting a Felony. Because anything less than the best would be a felony, right Vanilla?
So here is the deal. Don’t drink and tweet. Especially not to cops. If you find yourself doing all of those things in sequential order send the obligatory “I aint mad at cha” tweet or drop a ‘j/k’ into that mix. How is that for legal advice? To which I would say nothing above contains actual legal advice just a legal breakdown.