March 24, 2017
A Second Bite of the Honeycrisp
On March 22, 2017 the MNSC decided to give the State of Minnesota two bites at the proverbial apple. Without googling, I have never understood what “two bites of the apple” even means. It seems like a waste to only take one bite of the apple. So enough about apples, The Supreme Court wants to give the State of Minnesota endless chances to prove their case. That might be a little bit vitriol hyperbole, but here is what happened. Quintin Thomas was charged with a second degree DWI. Minn. Stat. § 169A.25, subd. 1(a) (2016) (defining second-degree driving while impaired as operating or being in physical control of a motor vehicle within two hours of having a blood alcohol concentration of .08 or more if the offense is committed within 10 years of “two or more aggravating factors.” Those aggravating factors were prior DWI’s, which are actually license revocations, from 2007 in Minnesota and 2006 in Wisconsin. A side note, I have heard of two guys in the same car getting a DWI in Wisconsin. Both were drunk. The driver was a paraplegic who had no legs, he was driving, and the “pedal guy” was working the pedals for him.
Usually in a case like this we stipulate to the fact that the person had the priors relieving the State of their burden to prove that the person on trial had two prior qualified driving impaired driving incidents. Reason being, we don’t want to the jury to see the person on trial has prior DWI’s. If a jury hears they have two prior DWI’s, they will be less likely to buy the “I was just sleeping in the car” defense.
In this case, it actually worked to Mr. Thompson’s benefit to not stipulate to the priors. Or so he thought. At the end of the State’s case, his attorney moved for a Judgment of Acquittal. Under Rule 26.03, subdivision 18(1)(a), “[a]t the close of evidence for either party, the defendant may move for . . . a judgment of acquittal on one or more of the charges if the evidence is insufficient to sustain a conviction.” When the defendant makes a motion for acquittal at the close of the State’s case, “the court must rule on the motion.” Minn. R. Crim. P. 26.03, subd. 18(2). Basically, this means the State did not prove their case so it has to be dismissed. Sometimes the State will forget to prove the where the case happened so the State cannot prove jurisdiction. Another example is value. If someone is charged with Felony Criminal Damage to Property where the threshold amount of damage is $1,000 and the State can’t prove the Ford Pinto that was damaged had a value of $1,000; you could ask for a judgment of acquittal.
Here, the State forgot to prove the priors and without the priors it would be a misdemeanor 4th Degree DWI not a Second Degree. If the State did not charge the lesser included 4th Degree DWI, then they would be out of luck. Thomas argues that the word “must” means they have to rule immediately. Meaning no chance for the second bite of the Fuji. The MNSC says there rule says nothing about not allowing the State to reopen their case before the Judge rules on judgment of acquittal. They were a doubting Thomas that word immediately needs to be applied. In Slaughter, the Court explained that “[g]iven the presumption of innocence and the state’s burden to prove the offense, a defendant has no obligation to present any evidence and should not be put at risk of providing evidence that fills gaps in the state’s case.” Id. In other words, we prohibit a district court from reserving its ruling on a motion for judgment of acquittal made at the close of the State’s case to protect the defense from having to come forward with evidence that would “fill gaps” in the State’s case. Id. In this case, the district court’s decision to rule on the State’s motion to reopen before ruling on the defendant’s motion for judgment of acquittal did not have that effect.
Really? Because it seems like it did.
The Court held that nothing in the rule says the Judge needs to immediately rule on the judgement of acquittal without first letting the State reopen their case. The second question becomes was it an error for the Judge to let the State have a second bite of the Honeycrisp?
Minnesota Rule of Criminal Procedure 26.03, subd. 12(g), governs motions to reopen and states that “[i]n the interests of justice, the court may allow any party to reopen that party’s case to offer additional evidence.” This rule gives the district court broad discretion to reopen either side’s case. See State v. Berg, 326 N.W.2d 14, 16 (Minn. 1982). The Court reviews “the disposition of a party’s request to reopen its case after the party has rested under an abuse-of-discretion standard.” State v. Caine, 746 N.W.2d 339, 353 (Minn. 2008). Specifically, we enumerated three considerations to guide a court’s discretion in ruling on a motion to reopen: (1) when the request was made; (2) whether the evidence was material, not cumulative, and concerned a controlling issue; and (3) whether there was an improper purpose for failing to produce the evidence earlier. Id. (citing Jouppis, 179 N.W. at 679).
The ole’ 3 part Caine test rears its ugly head. But, Thomas urges us to deviate from Caine and to adopt the approach of the Connecticut Supreme Court in State v. Allen, 533 A.2d 559 (Conn. 1987). The Connecticut Supreme Court concluded that allowing the State to reopen would make motions for judgment of acquittal a “dead letter.” Id. Where the defendant specifically identifies an evidentiary gap, then, the court concluded that allowing the State to reopen its case is an abuse of discretion. Id. at 566. So Caine v. Allen. Michael versus Tim. The battle to end all battles.
The Supreme Court decided against Tool Time, Adopting the Allen approach would also create a rigid, per se rule that a district court may not allow the State to reopen its case when the defendant has first made a motion for judgment of acquittal and identified the specific evidentiary gap for the State. Such a rule would promote “a sort of ‘gotcha’ principle of law.” People v. Whipple, 760 N.E.2d 337, 340 (N.Y. 2001). Exactly like when Katie Couric asked Sarah Palin ‘gotcha’ questions like what books has read. So under Caine, the analysis went like this: Under the first factor the request to reopen was made immediately. Under the second factor, the certified copies of the DWI were material not cumulative and relevant to the controlling factor. Under the final factor, Thomas was not surprised by the evidence. He knows what he did. Thomas loses.
Here the conclusions. Caine is lame. The State’s case is like that thing that Zeke Elliot does when gets a first down and he does the “feed me” the gesture to give him the ball. Let them eat. Again. So here’s what defense attorneys do, nothing. Don’t move for a judgment of acquittal, wait until the case goes to the jury and let jury know where the State failed to prove their case. Caine becomes irrelevant and the look on the prosecutor’s face should be tell the story.