September 29, 2017
You know that one time in Elk River
The week of September 25, 2017, did not yield a lot in landmark case law but there was an unpublished that got reversed so that is interesting. The case is called, State v. Stigen, A16-1583. It is about prior bad acts. A lot of people think trials are like the Jerry Springer show where all your baggage come out on stage to a loud crowd chanting “Jerry, Jerry, Jerry.” If the state wanted jurors not to hate their job, trials should be more like Jerry. But they are not. They are the polar opposite. However, sometimes they can bring up back past bad acts. You know… like.. that one thing you did one time in Elk River, that your wife will never let you forget. We call that Spriegl evidence, but for the purposes of this blog, we can refer to it as Elk River evidence. Because what happens in Elk River should stay in Elk River.
Quick facts: On September 22, 2015, police discovered 1.8 grams of meth in the possession of T.N. T.N. said he bought the meth from K.F. Hopefully Kevin Federline. T.N. thought KF got the drugs from a dude named Zane, who sounds like a guy from One Direction. T.N. set up Federline and they caught Kevin driving to Zane’s house and emerged with what was found to be 13.449 grams of meth. Federline said Zane sold him the meth. Zane was charged with First Degree Sale. In prosecuting Zane the State tried to get into evidence past drugs crimes of Inzane in the Membrane.
Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith.” Minn. R. Evid. 404(b). Such evidence, also known as Spreigl (Elk River) evidence, is generally excluded because “it might . . . suggest that the defendant has a propensity to commit the crime or that the defendant is a proper candidate for punishment for his or her past acts.” State v. Fardan, 773 N.W.2d 303, 315 (Minn. 2009).
(1) The state must give notice of its intent to admit the evidence; (2) the state must clearly indicate what the evidence will be offered to prove; (3) there must be clear and convincing evidence that the defendant participated in the prior act; (4) the evidence must be relevant and material to the state’s case; and (5) the probative value of the evidence must not be outweighed by its potential prejudice to the defendant. State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006) (restating the five requirements outlined in Minn. R. Evid. 404(b)).
The three Zane crimes the State was trying to introduce were (1) a 1997 conviction for conspiracy to sell 50 grams or more of meth. (2) a 2005 conviction for attempted fifth-degree possession of meth (which I am not sure how you attempt to possess meth? Maybe it blows away and you try to catch it?) and (3) a 2010 conviction for third-degree possession of meth.
The state argued the Elk River crimes were admissible to prove Zane’s knowledge or belief that the substance that was meth. So because Zane didn’t stipulate to the knowledge that the substance was meth showing his familiarity would only be fair. However, this wasn’t Zane’s defense. Zane defense was Federline was lying and he didn’t sell him meth. So the COA said the state’s need prior-crime evidence was minimal. The State also argued that the three prior convictions were relevant and material to prove the identity of the person who sold Federline was lying. In cases where Elk River evidence has been admitted to prove identity, the Minnesota Supreme Court has been rigorous in requiring that evidence is not just evidence of a propensity to commit a general sort of crime.
These crimes have one similarity, meth, but they are not substantially similar so as to properly identify Zane as the person who sold drugs to Federline on September 21 and 22nd. State v. Cogshell, 538 N.W.2d 124 (Minn. 1995). (requiring the prior-crime evidence be “sufficiently or substantially” to the charged offense, considering “matters such as time, place and modus operandi in determining similarity”). Two of these past convictions did not involve any sale at all. Instead, they invited the jury to conclude that Zane was a known drug user and had previously conspired manufacture meth. The Elk River/past crimes did not identify Zane as the seller of the meth in any meaningful way. You could argue, and Zane did, that they are markedly dissimilar to the charged crime. The Ness case said that “close-calls” should be excluded. Ness, 707 N.W.2d at 685. So the COA errored by admitting the evidence. The analysis was not done because the COA still had to determine that the evidence prejudiced Zane.
The State argued during their closing argument that the identity of the supplier was “the man with three prior meth-related convictions.” This argument paints Zane as a serial meth user. The only evidence the State had of Zane’s identity was from Federline. No meth was found on Zane or his home after a search warrant was issued. But both TN and Federline had meth and the defense was to attack Federline’s credibility by citing his plea agreement and his ties to the drug community. It is certainly possible the jury was skeptical of Federline’s credibility until they heard about Zane’s past. Therefore, Zane’s conviction should be reversed.
So if your wife keeps bringing up that one time in Elk River….tell her Zane’s story and that past conduct doesn’t survive a simple 404(b) analysis. What happens in Elk River stays in Elk River.