Court of Appeals Oral Argument

2018, is not off to a good blogging start.  But let’s be honest, 2016 and 2017 weren’t either.   Just more content.

There was a break from the blog last week due to the fact that instead of writing about the Court of Appeals, I was arguing there.   I have tried almost 100 cases to 100 different juries but I have only given one appellate oral argument in my life  And it gets even lamer, I was in law school.   And my opponent in law school on the day of oral argument came cruising into the parking lot, windows down, blaring “Where the Streets Have No Name.”   At that point, it was really over.  It was like when they played the Chicago Bulls entrance music back with those teams in the 90’s.   I was mentally defeated before it even began.  Flash forward about 13 years later and I am doing it again.  Called up the big leagues.  Well actually, the Supreme Court is the big leagues.  So maybe this is like Triple A.   But, that would be more akin to Minnesota Supreme Court.   This is more like college ball.  Division 3.  Actually, it is a big deal.  A lot of history is in that building and a lot of law has been made there.   But not from me.  And I had to call ahead to make sure I was going to the right history-making building.

Anytime you step out of your comfort zone you get a little nervous and I built this up to something that it wasn’t.  I believed I would have to memorize case names for case law that simultaneously supported and opposed me.   Since my case was so fact-driven they did not grill me on case law, but they grilled me nevertheless.   A couple of things about the Court of Appeals.   The parking lot is tiny.  If you are like me, and a lot of litigants are, and currently wearing a walking boot to a metatarsal stress fracture; the parking situation was not ideal.   Second, you do not need to bring in your crusty old CORE water bottle.  The Court of Appeals provides their own water and has glasses that looked be from the Crate and Barrel.  Third, the seating was sparse.   I pictured a grand room where tons of interesting spectators sat watching the confluence of brilliant legal minds.   A fire marshall would cap the occupancy at 20.   After my parents cancelled because of a “car repair,” the only people watching were law clerks.  The arguments were made to a 3 judge panel.  Fourth, it was way more laid back than I thought.  I didn’t get to put my feet on a desk and make my argument while reclined but it was not nearly as formal as I had imagined.    They would probably be annoyed by numbered arguments. Fifth, I thought I was being recorded and sadly, only oral arguments for the Supreme Court so my performance will live only in my head.  Which is probably fine for everyone.  Sixth, the opposing party, the Appellant got carte blanche for his entire 15 minutes.  The Justices barely interrupted and when they did, they asked questions that seemed to suggest they agreed with my opinion.   You get 15 minutes to make your argument.  Both the appellant and the respondent.  There is a green light, yellow light, red light set up on the podium.   Seventh, I was grilled.  They kept on trying to put me in a corner whereby had I agreed with their premise I would have indirectly conceded my argument.  But I was slippery and refused to put in a corner like that dancing movie with Patrick Swayze.  My sense is from the questions I was asked that I will lose.   But you never lose if you try your best.  Actually, you still lose.

That was about it.  I really enjoyed the experience and a different style of practice.  I am used to talking while no one else is talking, which is easier.  Here, you are making an argument while fending off tough questions.   The Justices will issue an order within 90 days.   I will not discuss the facts of my case here as to not to influence any opinion.  I can only assume my blog is read by all none of the Justices, but, in the event that they do read, they will only be influenced by me in my alloted 15 minutes.  Not in a poorly edited, lightly read blog.   Finally, it is my mom’s birthday.  I blogged on her birthday last year and wonder who did she make so angry that allows her to get acknowledged in a blog about case law.  So happy birthday mom and thanks to the Court of Appeals for having at 25 Rev. Dr. Martin Luther King Drive or where the streets have no name.



Two Week Blogiatus

This blog is back after two weeks off, a blogiatus, if you will.   Somehow the sun continued to rise and humanity continued to press on.    The reason for the break was the holidays and the worst vacation ever.    A vacation that I had to flu, broke my foot and it was so cold in Florida that Iguanas were falling from the trees.   I feel like Lloyd Chrismas saying “our pets heads are falling off!” with the Iguana thing.     Now, I may have broken my foot prior to leaving the State, but the TSA didn’t catch the broken foot (which would have been cheaper than an MRI) and Iguanas are sort of stupid, but those things happened.  And now we have to blog.   Blogging is chicken noodle soup for the fingers.   That sounds weird.

The case this week is about lanes.  “Stay in your own lane.”  Literally. Here is what happened:

On September 22, 2016, at approximately 11:50 p.m., Officer Jacques was on routine patrol traveling north on County Road 24 when he observed a vehicle approximately one mile in front of him traveling in the same direction. Officer Jacques was patrolling that location because there had been parties there in the past.  When they say parties, not like the Whigs, but parties involving underage drinking.  The worst kind.  Officer Jacques caught up to the vehicle, and when he was approximately three car lengths behind the vehicle, he observed it move right and on to the fog line, but not over the fog line. Officer Jacques then observed the vehicle move left and onto the center line, but not over the center line. Officer Jacques initiated a traffic stop and identified Kruse as the driver of the vehicle. Kruse performed poorly on field sobriety tests, and Officer Jacques arrested him for DWI.

Kruse moved to suppress the evidence supporting the charges, arguing that he was unlawfully seized without reasonable, articulable suspicion of criminal activity. Kruse also petitioned for rescission of the license revocation on the same ground.  Kruse lost at the district level and appealed.   How much lane touchin’ became the question?

Here is the law:

A traffic stop “‘must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.’” State v. George , 557 N.W.2d 575, 578 (Minn. 1997) (quoting United States v. Cortez , 449 U.S. 411, 417, 101 S. Ct. 690, 695 (1981)). It cannot be based on a “hunch” or be “the product of mere whim, caprice or idle curiosity.” Id. ; State v. Pike, 551 N.W.2d 919, 921 – 22 (Minn. 1996) (citing Terry, 392 U.S. at 21, 88 S. Ct. at 1880). However, “ if an officer observes a violation of a traffic law, no matter how insignificant the traffic law, that observation forms the requisite particularized and objective basis for conducting a traffic stop.” State v. Anderson, 683 N.W.2d 818, 823 (Minn. 2004). “[T]he factual basis required to support a stop for a ‘routine traffic check’ is minimal. ” State v. Engholm, 290 N.W.2d 780, 783 (Minn. 1980) (quotation omitted).  So they don’t need much.   The classic stop is when the officer pulls someone over because their license plate light is not inoperable.

Minn. Stat. § 169.18, subd. 7. That statute provides,

When any roadway has been divided into two or more clearly marked lanes for traffic…

(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

 Kruse argued:

That a “momentary touch of the fog line of a highway, [without] crossing it, does not constitute a violation of [Minn. Stat. § 169.18, subd. 7(a)],” which, again, provides that “ [a] vehicle shall be driven as nearly as practicable entirely within a single lane and should not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”

So the court determined it all depends on what the meaning of “is” is.   No, they defined “lane:”

The American Heritage College Dictionary defines “lane” as “[a] narrow way or passage between walls, hedges, or fences ” and as “[a] strip delineated on a street or highway for a single line of vehicles.” The American Heritage College Dictionary 779 (4th ed. 2007).  The same dictionary defines “delineate” as “[t]o draw or trace the outline of; sketch out, ” and it defines “between” as “[i]n or through the position or interval separating.” Id. at 136, 375. Combined, these definitions indicate that the markings referred to in Minn. Stat. § 169.18, subd. 7(a), delineate lanes for traffic and that the areas between the markings, but not the markings themselves, constitute the lanes.

Thus driving on markings constitutes movement from a lane and a potential violation of the statute.    So there you go.  Don’t drive on markings.  Don’t drive on paint.  Stay in your own lane.  Don’t break your foot or attempt to drive with an air boot on.  You will drive on paint.  You will get pulled over.  You will get pulled out of the car because your flu symptoms will be mistaken for intoxication.   You will be tested for field sobriety.  Which you will fail because you can’t walk a straight line because of the aforementioned boot and because you will be distracted by iguanas falling out of a tree. All of these things could happen if you are drive on paint.

The Cheese Lady

The week of December 18, 2017, was the not the most poignant as far as case law is concerned so we are going to talk to about a cheese lady.  A lot of times, this blog tries to educate the public at large my mom on case law, but sometimes cases are just funny.  This is that case.   In State v. Ryerson, the COA considered whether past bad behavior at a pizza place would be admissible for disorderly conduct about bad behavior at the same pizza place trial.     Here are the facts:

Ms. Ryerson was accused of acting inappropriately at a pizza place.  I am going to guess Godfather’s Pizza.   She left in a cab before law enforcement could arrive and the taxi company was not able to provide her name.   The following day, an officer investigating pizza gate got her name and address from an unrelated civil matter.    Mozzarella v. Ryerson.  She got charged with disorderly conduct.  Her defense was she has not been to the pizza place in three years.   During the trial, the owner of the restaurant identified Ryerson as the person in the pizza place that fateful day.   She said Ryerson yelled at one of her employees and she asked Ryerson to leave when she was taking too much Parmesan for her pizza.  She said she has seen Ryerson about eight times and Ryerson has the habit of emptying out all the Parmesan shakers on her one piecce of pizza.

The assistant manager also identified appellant at trial as the person who caused a disturbance at the restaurant. She testified that she has had six interactions with appellant, and that appellant used vulgar language during those interactions, complained about the food and cost, would “dump Parmesan” into her food container, and would arrive at the restaurant in a taxi.  She testified that, on the day of the incident, appellant entered the restaurant and complained about the food options and cost.  She testified that appellant used the “F-word” and “B-word” and said “sh-t a few different times to a few . . . other customers.” She testified that she witnessed appellant have a confrontation with two different customers, one of whom had young children with her. She testified that appellant called the customer a “sh–ty mother” who “was being a b—h.”

A customer also testified during the trial. She identified appellant as the person with whom she interacted. She testified that she intervened when appellant called another customer a “piece of sh-t” and complained about the employees. She testified that appellant then called her “an ugly piece of sh-t.” The customer testified that the incident left her five-year-old son “flabbergasted” and that he talked about the incident for days afterward.

Let’s put aside the objective fact that Ryerson rules, to discuss how the jury was instructed.  The district court instructed the jury that disorderly conduct includes conduct that is offensive, obscene, abusive, boisterous or noisy, or abusive language that qualifies as “fighting words.”  Ryerson got convicted and appealed the decision.

The question became did Ryerson get a fair trial when the jury heard about all her other Parmesan cheese discretions?

Minn. R. Evid. 404(b) prohibits the use of evidence of another crime, wrong, or act “to prove the character of a person in order to show action in conformity therewith.” Such evidence, commonly known as Spreigl evidence in Minnesota, 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) (quotations omitted); see State v. Spreigl, 272 Minn. 488, 490, 139 N.W.2d 167, 169 (1965).

The challenged evidence established that appellant frequented the restaurant and complained, used vulgar language, and took excessive amounts of Parmesan while there.  But the court says these weren’t even bad acts.   As someone who is mindful of the public cheese distribution that is almost offense.  But I can see the otherside of it as well, if you don’t want someone to take all of the Parmesan; put the Parmesan on the pizza yourself.  It seems like this was a self inflicted wound for the pizza place.   So the court says these are not prior acts so the employees can talk about all the excessive cheese shaking that they want.  Even if it was considered a prior bad, it would still would not be Spreigl evidence because prior cheese behavior and complaints were “very unique, very memorable” to the employees.

So Ryerson loses and let this be a lesson to you.   If you are going to use excessive Parmesan, don’t go back to the same crime scene.   Go from pizza place to place and let the pizza managers try to establish a serial Parmesan shaker while working together.  Don’t do make it as easy on them by going back to the scene of the crime.  It is like an arsonist showing up at their own fire and dumping Parmesan on it.

I’m on Meth. I got it from Dave

The week of December 11, 2017, was a little bit of a letdown in the way of Minnesota criminal case law.   Nothing was published, but there was a case about hearsay.   Hearsay is one term that is often incorrectly by the public at large.   Along with “squashing” warrants and something being rendered mood.  “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Minn. R. Evid. 801(c).   There are exceptions to hearsay but we don’t need to get into those now.    Here are the facts of this case:

Samuel Manthey was intoxicated at a social event.  Hopefully, it wasn’t a baby shower because that would be completely unacceptable.  Unless he was having issues with conceiving then it would mitigate the baby shower intoxication a little.  When asked if he was on the sizzurp he said, “I’m on liquid methadone,” and “I got it from Morgan Pavey.”  Mr. Pavey is the defendant in this case.   The next morning Mr. Manthey’s family found him unresponsive and the cause of death was methadone toxicity.  The State charged Mr. Pavey with 3rd-degree murder and used the statements made by Manthey against Pavey.  Pavey got convicted and appealed the conviction.

The district court admitted the statements made by Manthey under Minn. R. Evid. 807.    That is the “catch-all” rule when none of the other hearsay exceptions apply. Minn. R. Evid. 807, which allows admission of hearsay that possesses “equivalent circumstantial guarantees of trustworthiness.”

Rule 807 of the Minnesota Rules of Evidence provides that a hearsay statement not specifically covered by rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, may be admitted into evidence if it meets the criteria identified in the rule. When determining whether the statement has equivalent circumstantial guarantees of trustworthiness, a district court uses a totality of the circumstances test. State v. Griffin, 834 N.W.2d 688, 693 (Minn. 2013)

A district court should generally consider the following factors in evaluating trustworthiness:

whether the statement was given voluntarily, under oath, and subject to cross-examination and penalty of perjury; the declarant’s relationship to the parties; the declarant’s motivation to make the statement; the declarant’s personal knowledge; whether the declarant ever recanted the statement; the existence of corroborating evidence; and the character of the declarant for truthfulness and honesty. Id. 

Here, they say Manthey made a voluntary statement. He made the statements to friends who did not know Pavey and he had no motivation to lie.  What the Court is glossing over is that he was higher than a kite and people that are high are not reliable.    He could have been lying, he could have been mistaken, he could have gotten the drugs from Pavey but he could have stolen them from him.   We have really bare bones of evidence here.   But then Facebook happened.   Public service announcements to defendants: Don’t Communicate with People About Crimes on Facebook.  A friend of Manthey’s named, KT started communicating with Pavey on Facebook and Pavey wrote the following:

“Your [sic] pathetic it wasn’t even mine im on 48 mgs just stop . . . That wouldn’t of even got high he had 150i told him exactly how to take it he was doing what he always did. Pushed his limits that the way sam was . . . That goes for a dollar a mg I didn’t make a profit on it so stfu you sound so ignorant you have no idea what happened so why do you act like you do?”

I am not sure what that means but it makes me want to do an aggressive facepalm.   There is your circumstantial guarantees of trustworthiness.  To determine “that the statement has the necessary ‘guarantees of trustworthiness,’” Minnesota Rule of Evidence 807 also requires that the district court consider whether:

(A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

The Court agreed that these factors were all met and Pavey’s conviction gets upheld.   The lesson is here is clear.  This was a case that would not have been charged if Pavey would have just used MySpace.   While, I don’t condone the language, Spaulding from “Caddyshack” inherently understands this case in the video below.

My Purse, You Can’t Look Inside

The week of December 4, 2017, brought us some ruckus in the MN Supreme Court.   But before I get to that, I want to address last week.   There was not a blog written.  I received a throng (not like Sisqo) of questions why.  Actually, my mom just wanted to know if I was still alive.   I did not compose a blog because I was writing my own brief for the Court of Appeals that was due on Friday.  I will not comment on pending litigation, but I will break it down when the Court of Appeals makes their decision.   However, in the meantime, I can write about the ongoings of the MN Supreme Court.  They released two cases this week.  The first was an ineffective assistance of counsel case.  Which people do love.  A lawyer messes up and people want to spike their faux leather briefcase down in their face.   First-Degree murder case where the lawyer said this:

First-degree murder requires premeditation and the intent to kill. … We’re not really disputing the premeditation part. I would submit to you that intent element is the one that’s in question here.”

You can’t concede any elements with the express consent of the client so this guy gets a new trial.  The second case was about a search of purses.  We have all been there before.  We set our purse down while visiting a friend to check out some Ducktales and the police show up to execute a search warrant on the house.  The police search your purse and they find that you are holding.   You get charged with a crime basically for watching Ducktales.   This lady who just wanted to watch Scrooge McDuck dive into a giant pile of money challenged the search.  Beyond the scope of the search warrant.  She lost at the district and appellate court level and the MN Supreme Court decided to review it.

A search that exceeds the scope of a warrant is unconstitutional. Horton v. California, 496 U.S. 128, 140 (1990). A warrant, however, does not authorize the police to search the body and outer clothing of persons who are not named in the warrant. See Ybarra v. Illinois, 444 U.S. 85, 91 (1979).(holding that a search warrant authorizing the search of a tavern and a bartender did not authorize police to search customers at the tavern when the warrant was executed); see also State v. Wynne, 552 N.W.2d 218, 220 (Minn. 1996) (recognizing that a purse carried by a person is protected from search under a premises warrant because it is an extension of the person).

So you can’t search not named in the search warrant people for watching Ducktales during a search warrant.  You can’t search those same peoples’  purse while they are watching Ducktales, but only if they are holding their purse.  Here the purse was just chilling.  So they applied a totality of the circumstances test.  The totality of the circumstances should be a reality of the bureaucrats because purse lady loses.   Here, they were looking for drugs at a woman’s house.  Who carries purses?  European guys and women.   You can hide drugs in a purse and they were looking drugs.  Second, the purse was left unattended, they thought it belonged to someone named Michael Kors.   They lose.

Here is the lesson.  When you are watching Ducktales and the police bust in, your purse is on the kitchen table and you don’t want them rifling through it to find evidence of a crime like shoplifting at Walmart, grab that damn purse.  Hold on tight and tell them it is beyond the scope of the warrant.  Then get back to the shenanigans of Huey, Duey, and Louie.

Michael Scott’s DWI

After last week’s high of the Court of Appeals publishing my case you knew we would be in for an inevitable letdown.   The COA published a case about equal protection argument for sex offenders.   Essentially saying that a mistake of age defense as to the victim age’s only worked if you are no more than 120 months (1o years for non-math majors)

The COA published a case about equal protection argument for sex offenders.   Essentially saying that a mistake of age defense as to the victim age only is allowed to be used if you are no more than 120 months (1o years for non-math majors) older than the victim.  So a 44-year-old can’t claim a mistake of age defense with a 15-year-old victim.  Well, that was challenged for equal protection.   Well, the COA said it is not.  Editorializing here, but a law saying Rosa Parks has to sit in the back violates equal protection claims.   Not some 44 year old with Zima getting caught by Chris Hansen or is it Chris Harrison?

So the dream is dead there.  For now.

The next case that caught my eye was a defendant named Michael Scott Torfin, but his last name matters very little.  Having the first name as Michael and the middle name of Scott is awesome and makes me wish I would have named my kid that instead of a Gaelic name that means “son of” instead.  Despite the amazing potential for middle names on that.   Michael Scott was appealing to the decision of the district court

Michael Scott was appealing to the decision of the district court to uphold the suspension of his DL.    He was stopped for speeding before he drove in the lake.  I really hated that storyline.   That is the show, not the facts.  The seamless switching back and forth *may* confuse the reader.  It will continue.   On September 27, 2016, a Victoria officer who must be a fan of Downton Abbey heard aggressive accelerating, usually attributable to a Honda Civic with a spoiler.   The officer clocked the regional manager going 57 in a 45.  So not that aggressive.   The officer could smell alcohol and Blind Guy McSqueezy, (MS alias) admitted to having a couple on a booze cruise.

The officer could smell alcohol and Blind Guy McSqueezy, (MS alias) admitted to having a couple on a booze cruise.    Michael Scran did not want to blow in the preliminary breath test because he did not want to find himself in trouble with corporate.   He failed field sobriety and got arrested and had to become Prison Mike.  But he challenged the Victorian officer’s expansion of the stop.

In some seems like all instances, a police officer may conduct a limited, investigative traffic stop without a warrant when the officer has reasonable, articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968). A traffic stop initially supported by reasonable suspicion may be expanded, so long as the expansion is “strictly tied to and justified by the circumstances which rendered the initiation of the stop permissible.” State v. Asherooth, 681 N.W.2d 353, 364 (Minn. 2004) (quotations omitted). Justification comes from “(1) the original legitimate purpose of the stop, (2) independent probable cause, or (3) reasonableness, as defined in Terry v. Ohio.”Minnesota courts have articulated several bases on which an officer may permissibly expand the scope of a traffic stop to investigate a driver’s possible intoxication. Some indicators of intoxication include the odor of alcohol, slurred speech, glassy eyes, and poor balance. Johnson v. State, Dept. of Pub. Safety, 351 N.W.2d 2, 5 (Minn. 1984).

So the police had a legitimate reason to pull over Mr. Scott’s  2004 Chrysler Sebring but did they have a reason to expand the stop.   If Mary Jo Copeland was coming home from dancing at the Lookout they couldn’t make her do field sobriety if there was nothing there, but here there was reasonable suspicion.   There was aggressive acceleration.  It was late at night, the officer smelt that Michael Scott was “doing alcohol.” Michael Klump admitted to drinking and he didn’t make eye contact.  More than enough.   Not really much of a review.  Just wanted to write about Michael Scott.


Voluntary Attendance in Trial

I have been whining for weeks now that the Court of Appeals and the MN Supreme Court is giving me nothing.   Nothing.  Well, I have been rewarded with my own case.   They reviewed a case I tried and they published it.  Because of course, my losses get published.  So on November 13, 2017, they published State v. Sam.  My client was charged with aggravated robbery and 2nd-degree assault.  The alleged vic (AV) said my client robbed him at knifepoint, even cutting him after he had stolen some “shit” from someone else.   The AV got impeached with prior felony convictions, prior crimes of dishonesty, prior inconsistent statements, and a plea deal he got from the State to basically get an apology letter for all of his crimes if he testified against our client.   That may be overselling the plea deal a tad for dramatic effect.

It was a two-day trial and my client was present and engaged for day one.  The State had closed their case so all was left was to call anyone witnesses we had and go closing argument.  Well, Mr. Sam did not show.  His mother had called and said he overslept and the show went on over my objection.  In the jury instructions, which were read before closing argument, we asked for a no-adverse-inference instruction in his absence.   That essentially said the jury should take no adverse inference with the fact that Mr. Sam was not present.   The case was argued and Mr. Sam was acquitted of the agg rob charge, which the COA conveniently left out of their analysis.  (Fake Opinion!)  But he was found guilty on the second-degree assault.  He appealed the decision that he did not consent to the no adverse inference instruction, therefore it was an error by the district court.

When a defendant is voluntarily absent from trial following the impaneling of the jury, the defendant waives his right to participation, and the trial may continue without his presence. Minn. R. Crim. P. 26.03, subd. 1(2) (2015).  This issue has never been litigated before.  So it is good hands if it is being litigated by me.  In State v. Thompson, the Minnesota Supreme Court held that a district court should in most cases obtain a criminal defendant’s permission before giving a no-adverse-inference instruction and that a record should be made “regarding the defendant’s preference in the matter.” 430 N.W.2d 151, 153 (Minn. 1988).   Because Mr. Sam was not present he could not consent to the no adverse-inference instruction.  So that is what he appealed.

The Court of Appeals agreed with the district court Judge.  First time for everything.  I say that in jest because of the particular Judge, who happens to be an excellent Judge.   Nothing to cite to support that decision, because this issue had never been litigated before.  The transcripts will reveal who asked for the instruction if it was the defense side or the judge, I don’t remember.

Here are my inside takeaways from the case.  First, I remember the Judge laughing at me after trial for giving a full performance despite the absence of a client. Second, the Court of Appeals was actually somewhat complimentary of my closing, saying the following, “Counsel prominently, and for good reason, discussed appellant’s decision not to testify in his own summation. Defense counsel stated, “[The] Fifth Amendment to our Constitution says that a person doesn’t need to testify in their own trial. [Appellant] obviously didn’t testify at his own trial in this particular situation. . . . You simply cannot use the fact that [appellant] did not testify against him.”  That is about as complimentary as the Court of Appeals can get.  I will take it.   Last, I could not have created case law that is probably bad for defendants going forward, without help.  It takes a village.   I co-counseled the case with an attorney I hired (Look at me, I hire people) who has since moved on, but not before allowing me to take a ton of pride in my decision to hire her.    So there you go.  As optismistic of a blog as you can get for a guy who skipped the second day of trial.

So if you don’t want to come to your trial, ask for a Sam instruction and let you attorney go to work.  Actually, that is horrible advice, you should always come to court.  There is no better place on earth.   This is the second time, I have been published.  This and the Felony DWI that got thrown out.  So higher courts let’s keep them coming.

I Want a Lawyer Dog or I Want a Lawyer, Dawg?

Minnesota appellate decisions are basically turning me into Spaulding from Caddyshack.  By telling me:  “You will get nothing and like it.” However, desperate times call for legal opinions from…Louisana.  God bless the Louisana justice and God bless I mean I hope I am never lucky enough to experience it.   So there is this guy named Demesme.  He was interviewed by the police.  During custodial interviews, a suspect has to be read a Miranda warning.  Anyone who has watched Law and Order knows that Miranda explains that you have a right to remain silent.  Anything you can say can and will be held against you.  You have a right to an attorney.  If you cannot afford an attorney one will be provided to you.  They read that and then the person makes a decision whether or not to talk to the police or ask for an attorney.   If they decline to speak, then the interview should cease.  But it really should cease if the suspect asks for an attorney.   This one is easy.   If the suspect asks for an attorney, you stop the interrogation until the lawyer can be there.

However, in this case, the defendant said something different.

“If y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.”

So one would assume this gentleman was speaking in colloquialisms and referring to the officer or officers under the slang term “Dawg.” Dawg is defined by the Urban Dictionary as:

  1. Slang for “my close acquaintance of an African-American ethnic background” and word to be used in place of a name, or other personal noun or pronoun to be used in place of a name.
  2. Word to be used in place of a name, or other personal noun or pronoun to be used in place of a name

So we can assume that second definition of the dictionary used in the Law second to Black’s Dictionary applied here.  I would argue that “dawg” is used interchangeably as slang as the word “dude.”

Seems pretty obvious, right?  Well, remember we are in Louisana.   The Louisana Supreme Court Justice Scott J. Crichton, concurring in the Louisiana Supreme Court’s

As this Court has written, “[i]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable police officer in light of the circumstances would have understood only that the suspect might be invoking his right to counsel, the cessation of questioning is not required.” State v. Payne (La. 2002); see also Davis v. United States (1994) (agreeing with the lower courts’ conclusion that the statement “[m]aybe I should talk to a lawyer” is not an unambiguous request for a lawyer). In my view, the defendant’s ambiguous and equivocal reference to a “lawyer dog” does not constitute an invocation of counsel that warrants termination of the interview and does not violate Edwards v. Arizona (1981).

Holy crap.  The Justice either (1) thought he was asking for an actual dog who was a lawyer.   (2) Is punishing him for speaking

The Justice either (1) thought he was asking for an actual dog who was a lawyer.  (2) Is punishing him for not speaking in the Queen’s English.   Because here is the deal.  Dogs are stupid.   K9 dogs.   They eat their own poop.  Sometimes.  Some dogs.  No person in their right mind would think that a person would stop an interview so that a lawyer dog would come in and save the day.  While this ruling is quite funny, it also sucks that Louisana is punishing a guy for speaking in slang.

I hope this court takes the case.

Who are you going to call?

You are killing me Smalls.   Smalls would be both the Court of Appeals and the Supreme Court.  Give us something.   Supreme Court is too busy disciplining attorneys.  Which to be fair, is a full time.   The COA is not publishing any criminal cases and unpublishing only ten down from a typical 30 or so.   So are not given much to work with here.   But was it over when the Germans bombed Pearl Harbor?  We are going to keep on blogging you because it is the only thing I want to do.  That sounds like a prelude for a crim sex case but at least they will be some action in the courts somewhere.   So the week of October 30, 2017, we are going to talk about your right, your constitutional right to make a call.   Every depiction of jail in on TV indicates you get to make one phone call.  That is not true.   But when you get a DWI you get phone time.  Let’s talk about that now.

The case is State v. Carter, A16-1818.   Mr. Carter was arrested around 3:00 A.M. for driving on the shoulder and spraying water.   Spraying water is only allowed if you are intentionally discharging a super soaker water rifle.   The trooper was alongside him and he was not wearing a seatbelt and talking on his cell.   The trooper thought that Carter was lit.  Not in the cool way that kids say things are lit.   He was arrested and taken to the jail where he was asked if he wanted to call an attorney.   Carter did.  The trooper gave him a landline phone, telephone books, and allowed him to use his cell phone.  Carter’s phone time lasted for 32 minutes.  His phone time was a mixed bag.  He talked to an attorney at one point but also made personal calls and discussed setting up bail as opposed to discussing whether or not he should take a breath taste.   12 different times the trooper had to remind him to not make personal calls.   Carter also asked several questions to the trooper like what county he was in (oof) what was he arrested for (oof) and how many prior DWI’s he had (oof again).  Toward the end of the call the trooper said you have had enough phone time and asked Carter if he would take a test.  Carter said “why not,” and “sure.”  He submitted a test of .179 and .19.   He was charged with second degree DWI.  One prior and a test over. 16.  He argued the trooper’s interruptions made it so his phone time was not vindicated.  The district court said no way and he appealed.

Here is the law.

A driver has the right to obtain legal advice prior to deciding whether to submit to chemical testing. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). This limited right is vindicated if a DWI arrestee “is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.” Id. (quotation omitted); see State v. White, 504 N.W.2d 211, 213 (Minn. 1993) (extending right to criminal proceedings). There is no fixed amount of time that constitutes a “reasonable time.” Mell v. Comm’r of Pub. Safety, 757 N.W.2d 702, 713 (Minn. App. 2008). We consider the totality of the circumstances in determining whether a reasonable time was provided. Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 841 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000). We look to the officer’s duties in vindicating the right to counsel, as well as the arrested driver’s diligence in exercising the right. Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992).

Carter loses here because he had over thirty minutes to make calls.  He was given a landline and telephone books which makes me think he was arrested and taken to a museum.   He also had his cell phone so he could use IMDB for Val Kilmer movies. We have previously stated that when a defendant is able to consult with an attorney, his rights are vindicated. Kuhn, 488 N.W.2d at 841-42. But see McNaughton v. Comm’r of Pub. Safety, 536 N.W.2d 912, 915 (Minn. App. 1995) (stating that merely speaking to an attorney does not vindicate an arrestee’s right if the attorney is unwilling to provide advice).

Carter says the trooper interrupted him and that was rude but he was interrupted to stay on task and not set up bail.A DWI arrestee “must make a diligent effort to contact an attorney.” Linde v. Comm’r of Pub. Safety, 586 N.W.2d 807, 809 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). An officer need not allow an arrestee “unfettered use of a telephone to call friends or relatives, unless the driver specifies that the reason for the calls is to contact an attorney.” McNaughton, 536 N.W.2d at 915. An officer’s constant interruptions could restrict an arrestee’s right to consult with an attorney to such a degree that the arrestee’s right is not vindicated. “Police officers must assist in the vindication of the right to counsel.” Mulvaney, 509 N.W.2d at 181.  However, it was Carter who engaged in delay tactics and the trooper’s actions were reasonable.   Carter loses.

So when/if you get phone time in a DWI, a couple of pieces of advice.  First, call an attorney.  Facetime would be preferred. Second, know what county you are in.  If you want to set up bail when you are supposed to be calling an attorney is helpful if you know where you are.  Third, if you don’t want to be interrupted don’t ask the officer questions.  Stay on the phone and tell the officer you want your phone time vindicated and you want it vindicated now.

Straight up Now Tell me Now

Only one of two things can be happening right now.  First, the MNCOA vitriol for this is causing them to not publish any cases and only not publish, like my memoir,  a handful of cases.  Two, the Justices are enjoying the brisk fall sweater and going for long walks while wearing Patagonia jackets and sipping pumpkin spiced drinks.  I think it is number two, but regardless the week of October 23rd, 2017 gave us very little.  But when life gives you very little you make self-indulgent blogs.

So here we go.  This blog about plea withdrawal.  This might be hard to believe but some people plead guilty only to want to want their plea back.  People will blame their attorney say the attorney made them plead guilty.  Some people will say anything to get out of jail.   Some people will say they were unmedicated at the time of the plea.   This case is State v. Finn, A16-1394.  Huck wanted was found 8.5 grams of cocaine, which at the time was a second degree c-sub case.  The DRSA had not gone into effect.  During this plea the following exchange occurred:

DEFENSE: [Y]our Honor, at this time Mr. Finn is prepared to enter a straight plea to Your Honor. In some discussions at the bench it had been agreed that we would argue the sentence at a sentencing date. Mr. Finn is prepared to enter his plea in today.

COURT: Okay is that your understanding, [counsel for the state]?

STATE: Your Honor, it was my understanding yes, it was a straight plea with arguing for sentencing for range of 51, 60 months. Obviously, since it’s a straight plea, it’s up to the Court.

COURT: Okay because that’s different than a straight plea because if it’s a straight plea I could do 98, or I could go above so.

DEFENSE: We agreed upon a range of 51 to 60 months, Your Honor, sorry.

COURT: Okay, so that means the State is agreeing to a downward durational departure but not to the amount that the Defense is requesting of 51 months, correct?

STATE: Well Your Honor, I would note that I had offered a 60 month commit and I was not willing to go down to 51 even in terms of putting in a range, so this is a true straight plea. I will be asking for 60 months at sentencing.

COURT: Okay, thank you. Okay Mr. Finn, is that your understanding?

FINN: My understanding was I was pleading between 51 and 60 months.

COURT: Okay I think that’s what [the state] just put on the record . . . . [Defense counsel] agreed.

The signed petition describes the plea as a “straight plea, range of 51-60 months.  So this was not a straight plea.  A straight plea is when your plead to a count and there is no agreement on sentencing.  So for a Felon in Possession of a Firearm Case you could do a straight plea and the mandatory minimum sentence is 60 months.  The defense could ask the judge for a durational and/or dispositional departure.  Durational would be less time because the offense wasn’t as serious as the typical offense.  He was possessing a civil way bayonet.   Dispositional is asking for probation.  He doesn’t deserve to go to prison because he volunteers at the Derek Zoolander School for Children Who Want to Learn to Read Good and do other stuff good too.

Between the time of the plea and sentencing, Huck asked for a Furlough to go his own funeral (or more accurately a medical appointment)  A furlough means that you are in jail but you get a release to attend something like a medical appointment (should be relatively serious not just where they “poof” your eyes), child birth, funeral so on and so forth.  But you are still technically in custody and if you don’t come back you can be charged with escape.   So Huck wanted a furlough and the Judge warned him he would give him to top of the box sentencing of 117 months if he didn’t come back.

He didn’t come back.  When he was found in Missouri engaging in general tomfoolery he went to sentencing.  Defense counsel asked for 60 months.  The range was 51-60, give him the top.  The State said, not less than 60 but they would be okay with 98.  The district court sentenced to 108.  Huck appealed.

Finn argues that the district court imposed an unlawful sentence when it sentenced him outside the 51- to 60-month sentencing range contemplated by the plea agreement without giving him an opportunity to withdraw his guilty plea. The state argues that the 108-month sentence was within the district court’s sentencing discretion because Finn submitted a straight plea.  The district court must either “reject or accept the plea of guilty on the terms of the plea agreement.” Minn. R. Crim. P. 15.04, subd. 3(1). If the district court rejects the plea agreement reached by the parties, it must afford the defendant an opportunity to withdraw his plea. Id. If a district court accepts a plea agreement that includes “an unqualified promise . . . on the sentence to be imposed,” it must either sentence according to theagreement or allow the defendant to withdraw his guilty plea. State v. Kunshier, 410 N.W.2d 377, 379 (Minn. App. 1987), review denied (Minn. Oct. 21, 1987). The court first examines “what the parties to the plea bargain reasonably understood to be the terms of the agreement” to determine whether the agreement was violated. Wukawitz, 662 N.W.2d at 527.

This one is relatively easy.  This was not a str8 plea.  There was a range of 51-60.  By sentencing to him 108 months the plea agreement was violated.  The court could reject the plea but then Huck could withdraw.  But the only thing that is getting withdrawn is Huck from his 108 month.  This one gets flipped and Huck will get resentenced.   Straight up now sentence me now is it going to be 108 months forever?  Oh, oh is it just going to be a range from 60 to 51?