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?


Say Nope to Dope….by Schools

The week of October 19, 2017, gave us nothing in the way of no case law.  The MN supreme court disciplined some attorney and the court of appeals gave us eight cases nonpublished.   So we are going to go back a few weeks to a published case about slingin’ dope in a school zone.  I don’t know if slingin’ dope is the right colloquium but it sounds cool lame so let’s go with that.  This case was called State v. Lapenotiere (A17-0456)  The head of the NRA  was convicted of  sale of drugs 2nd and 3rd degree within a block or 300 feet of school property.  He got 78 months in prison and appealed.

Under Minn. Stat. § 152.022, subd. 1(6), the state was required to prove that he sold a controlled substance in a school zone. “School zone” is defined as “the area surrounding the school property . . . to a distance of 300 feet or one city block, whichever distance is greater.” Minn. Stat. § 152.01, subd. 14a(1)(2).

This is the property layout of this case:


Wayne lives where the X is located.   This image is from google maps so perhaps if Wayne lived in a bigger house he wouldn’t need to sell drugs.  Lapenotiere says he doesn’t live one city block of the school property. He argues  State v. Carufel, where the defendant was convicted of second-degree controlled-substance crime based on selling drugs in a “park zone.” 783 N.W.2d 539, 541-42 (Minn. 2010).

“Park zone” is defined as “`the area within 300 feet or one city block, whichever distance is greater, of the park boundary.'” Id. at 542 (quoting Minn. Stat. § 152.01, subd. 12a (2008)). Carufel contended that the term “one city block” is ambiguous and encompasses, at most, the side of a block that is directly across the street from a park. Id. at 543, 545. The supreme court rejected both arguments, first observing that the term “block” is commonly understood “as a rectangular section of a city or town bounded on each side by consecutive streets.” Id. at 544. After noting that “one city block” is both a distance measurement and a description of area, id. at 544 n.2, the supreme court held that

when the land surrounding a public park is an area divided into rectangular blocks bounded by city streets on all four sides, the phrase “the area within . . . one city block” . . . is not ambiguous and the park zone includes the entire area of a block that is directly adjacent to the park.

Id. at 545.  Wayne says his case is not like Careful’s (sp) case and he should be treated differently.   Wayne says if you look at the google map above, under a careful reading of Careful (sp) that only the gray areas should be treated as directly adjacent.  Wayne asserts that he does not live within one city block of the school property because his residence (The X house”) is on a corner block rather than a block “directly adjacent” to the school property.  Wayne loses this argument.

First, they reject Wayne’s reliance on Carufel that only city blocks bounded by a street that borders school property meet the statutory requirement. While it is true that Carufel’s residence was located on such a block, the supreme court emphasized that its holding was “limited to the actual facts presented.” Id. at 545 n.3. Careful applies to Careful.  Nice try…Wayne.

Second, “park zone” is defined as “the area within 300 feet or one city block . . . of the park boundary.” Minn. Stat. § 152.01, subd. 12a (2012). But “[s]chool zone” is defined as “the area surrounding school property . . . to a distance of 300 feet or one city block, whichever is greater.” Minn. Stat. § 152.01, subd. 14a.  “Surround” means “[t]o extend on all sides of simultaneously; encircle.” The American Heritage Dictionary 1754 (5th ed. 2011).  Nice try again…Wayne.  But think of it as sweet surround sound speakers.  You don’t have to be sitting by the soundbar to hear how awesome Nick Cage’s “The Rock” sounds.

Third, keep children away from drugs.   Does Wayne not remember that remember that episode, in “Saved by the Bell.”  It was called “Say Nope to Dope.”  Johnny Dakota a super cool movie star came to Bayside to film an Anti Drug Commercial, but soon his secret was out when a “roach” was found in the bathroom.  Drugs and school shouldn’t mix.  Unless they are prescribed and used per prescription.  Then teachers beg of parents to make sure parents medicate their kids.  But not the drugs that Wayne and Johnny Dakota use.  Say Nope to Dope Wayne.

Difluoroethane in the membrane

The week of October 9, 2017, was again not the most interesting one in the jet-setting world that is MN case law.  However, if you are a difluoroethane (DFE) user, this week means the world to you. State v. Carson, A15-1687   In November of 2014, officers responded to call to a drive-thru restaurant about a passed out patron.  The MNSC was discreet about the restaurant but we all know it was Taco John’s.  Passing out in the driveway is unfortunate because you are so close to your reward that you can smell it, but then you go and pass out.   The passed out person seeking a super burrito was slumped over in her car.   As you can imagine she was pretty messed up.   Court’s language, not mine.   One can of Dust Off was found in the car.  One week later the same thing.  Slumped in a running car, potato oles everywhere with three cans of Dust Off    Several months later, the same thing happened at a different location.  The court did not name the other location but we all know it was another Taco John’s.  The only difference was this time they were five cans of Dust Off.

On each of those occasions, Ms. Carson was placed under arrest for DWI.  The police obtained blood samples from Carson on the first two occasions and a urine sample on the third occasion. Subsequent analysis revealed the presence of DFE and clonazepam. She filed a motion to dismiss saying that there was insufficient evidence that she was under the influence of a “hazardous substance” as defined in Minn. Stat. § 169A.03, subd. 9.  During the hearing, a scientist testified to the following:

“[DFE] is commonly seen in a product called Dust-Off. It is commonly abused as an inhalant simply because it is easy to obtain and you don’t need to be a particular age to acquire it or purchase it, and it will produce a pretty rapid high, as well.”

The district court said that DFE was a hazardous substance.  The Court of Appeals agreed and the Supreme Court got the final word in the neverending debate of whether or Dust Off is like the Sizzurp.  In Minnesota, it is a crime to drive, operate, or be in physical control of a motor vehicle while “the person is knowingly under the influence of a hazardous substance that affects the nervous system, brain, or muscles of the person so as to substantially impair the person’s ability to drive or operate the motor vehicle.” Minn. Stat. § 169A.20, subd. 1(3).  A hazardous substance is defined as “any chemical or chemical compound that is listed as a hazardous substance in rules adopted under chapter 182 (occupational safety and health).” Minn. Stat. § 169A.03, subd. 9 (emphasis added).  Chapter 5206 contains a specific rule on hazardous substances, which includes a “[l]ist of hazardous substances” in alphabetical order. See Minn. R. 5206.0400, subp. 5. Rule 5206.0400 also states: “The hazardous substance list includes the majority of hazardous substances that will be encountered in Minnesota; it does not include all hazardous substances and will not always be current.” Id., subp. 1.

Carson said that DFE is not included in the list of hazardous substances.  The State said the list of not exhaustive.  Then the court engaged in a spirited debate about what list means.  The American Heritage Dictionary of the English Language 1024 (5th ed. 2011) (defining the verb “list” as “[t]o make a list of; itemized” and a “list” as a “series of names, words, or other items written, printed, or imagined one after the other”).  The State said that “list” includes characteristics of DFE that make it a hazardous substance.

Think of it, like this… you are in a relationship and when you look at the characteristics of a relationship a lot of boxes are checked.  However, without an official Facebook status update, you are not the official relationship list.  And you have never met any of their friends.  Therefore, the State’s argument is there is a relationship by implication, but the MNSC said Dust Off on the hazardous substance list are just friends and can see other people.    It makes sense because if the legislature wanted to criminalize a person under the influence of any hazardous substance they would have said that.  But, they made a list.   So my sense is Dust Off will be on the banned substance list so if you want a little kick with your potato oles while driving, you better do it quick.  Difluoroethane in the membrane, difluoroethane in the brain.

Difluoroethane in the membrane


My Lawyer Sucks Argument

The week of October 2, 2017, was again not noteworthy in Minnesota published case law.  Which, I know comes as a major disappointment to the public at large.   There was an unpublished case where a guy pretended to be a sex therapist counseled a person addicted to sex.  This may come as a surprise to many but they had sex.  When he got charged with third-degree crim sex because of the sensitive nature of the professional/client relationship, said he was just pretending to be a professional.  He lost his argument and I feel like you get the gist of the case, so we will move onto ineffective assistance of counsel, or otherwise known as when lawyers suck.   This case is called, State v. Berhens Jr., (A17-0499).

He was on probation for a second-degree crim sex case for 25 years.  He was supposed to complete sex offender treatment, chemical dependency counseling, individual counseling, not get online without probation approval.   He has a probation-violation hearing regarding his use of devices that can get onto the internet.  The court dismissed the violation but the court amended the conditions of probation to include no internet access and no possession of internet-capable devices without agent approval.  There was another hearing in which he admitted buying a phone capable of accessing the internet.  As a consequence, the court ordered him to serve 120 days in jail.

After serving his jail time, he again got violated for the internet (must be a blog reader) drinking, possessing five cell phones and failing to complete chemical dependency treatment.  Behrens testified that he had issues with drugs and alcohol.  He didn’t show up for the treatment intake because of work.  He used the internet to obtain college transcripts and said the five phones were not in service.  Like collecting old Motorola Razrs.   The State argued that the violations were proved by clear and convincing evidence and Berhen’s attorney said this:

“I don’t know what to say for this man, Your Honor. He has been on probation a few years now. He probably should be farther along with things.  I think given his disability and mental illness and untreated chemical addiction problems I don’t think he is capable of being successful on probation. Every time I have talked with him in the past week or so since I have gotten this case he has been talking about going to treatment and wanting help for his alcohol problem and drug problem because he thinks that is sort of the overarching issue, but I know he wants to try one more time on probation, and that is what he is asking for, Your Honor.”

Once the court found the violations were proved,  the State asked that he go to prison for 36 months.  The state argued that it would depreciate the seriousness of those violations if the court did not revoke probation and execute the 36-month sentence. Behrens’ attorney was asked to address sanctions and responded with, “Nothing further to say, Your Honor.” The court sent him to prison for 36 months.  Behrens appealed for ineffective assistance of counsel.

A defendant has a statutory right to the assistance of counsel in a probation- revocation proceeding. Minn. Stat. §§ 611.14(3); 609.14, subd. 2 (2016). The parties have analyzed the issue under the Sixth Amendment. When evaluating claims of ineffective assistance of counsel under the Sixth Amendment, we employ the Strickland test, which has two prongs: deficiency of representation and prejudice to the defendant. State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999). The defendant must affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).

Behrens argues that his counsel’s representation was unreasonable because counsel conceded that Behrens violated probation and that he could not be successful on probation. According to Behrens, “[n]o reasonably competent attorney would do such a thing.” The State did not argue with that.   Without being at the hearing or reading the transcript it is impossible to know how the evidence came in.   That being said, the State needs to prove by clear and convincing evidence that the person intentionally violated probation.  The probationer can argue mitigation to the court as well, such as I had 5 cell phones because the 4 previous ones I had got cracked screens.

What the State argued is this, that there is no reasonable probability that the result of the proceeding would have been different, considering Behrens’ detailed history of probation violations and lack of meaningful progress while on probation.  So Behren’s could have had Johnny Cochran exhumed from the grave and the result would have been the same. Prison.

Behrens relies on Dukes v. State, where the supreme court acknowledged that “there are some Sixth Amendment right to counsel violations in which prejudice to the defendant will be presumed.” 621 N.W.2d 246, 254 (Minn. 2001) (citing Strickland 466 U.S. at 692, 104 S. Ct. 2052). In Dukes, the supreme court identified the situation “where counsel admits guilt without the consent of the defendant” as a situation in which the defendant would be “entitled to a new trial, regardless of whether he would have been convicted without the admission.” Id. at 254 (citing State v. Wiplinger, 343 N.W.2d 858, 861 (Minn. 1984).  So you can’t say, “yeah you are right, my client sucks.  He did it.”   This happened here but I think the court also could have focused on the complete lack of disposition arguments.   Disposition is the punishment.  You get to argue Austin, that the policies in favor of probation are not outweighed by the need for incarceration.   You can Motland, which talks about a need to protect public safety, or a need for correctional treatment, or that the seriousness of the violation unduly depreciates the seriousness of the violation.  Which sounds like something a headmaster says before you get kicked out of an English boarding school.   Something.  The client is related to Kim Jong Ill, and is named Menta Lee Ill.  Give the court something but here we got nothing.   And Mr. Behrens gets another bite at the apple.

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).

 There are five requirements that must be satisfied before evidence of another crime, wrong, or act is admitted at trial:

(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.

International Hearsay

The week of September 18, 2017, did not bring us much in the form of case law, but it did bring this blog unprecedented attention.  I found out that this blog is read internationally.   Meaning someone I know, read it while abroad.  So it is just a matter of time before this blog catches fire in the Country Chad.  Because if there is one thing people in different countries care about, it is Minnesota case law.  That being said since there was nothing published of substance we can look at an unpublished case.

This case is called, State v. Abdullah, A16-1693 and was released on September 18, 2017.   This case is about hearsay.  People love to talk about hearsay.  They say well that is just hearsay when someone tells them what someone else says about them.  And they right!   It someone named Dave tells you someone named Todd called you a “power tool,” that is hearsay.   And that is what this case is about.   Mr. Abdullah’s first name was Rarity and he was convicted of being an ineligible person in possession of a firearm.   Here the facts:

On June 24, 2015, a St. Paul police officer heard shots fired.   The officer drove toward the shots, which is one reason as to why I would not make a good police officer because I would where there is not gunfire.   Unless it was that event at the Olympics where you bobsled for a while and then shot.   The officers saw a Lincoln speeding away which made them think the Lincoln could have been involved in the shooting.   They followed the Lincoln and someone got out who the officer described as a tall individual with dreadlocks.  So it could have been Javier Baez.  Addison Russell gets hurt and Baez decided to rock the dreds because he played short.    The Cub’s middle infield may be insipid to some, but again we have to keep the international readership happy.

The officers eventually pulled the Lincoln over and arrested Rarity’s brother named R.A.  No word on whether or not he served that role on the campus of Concordia St. Paul.   Someone named R.I., who does not serve as dorm supervisor for Hamline University said they saw someone a nervous looking man dump something in her neighbor’s garbage can.  A firearm was discovered in the garbage and it was tested for DNA by the BCA.  There was a mixture of three or individuals on the gun.  51.6 of the world’s population, including Rarity, could not be excluded.   8 billion people in the word that means a little less than 4 billion could not be excluded.  So Rarity was not a rarity with the DNA finding.   99.99999 with a bar over the last 9 could be excluded from reading this blog (before the international readership) that is powerful evidence.  Another officer found 4 casings from the scene where the shots were fired and the shots matched the gun found in the trash.

On the second day of trial, R.A. was arrested in his dorm with his lava lamp and Dave Matthews Band cd, (it has been a while since I have been on a college campus) and brought to trial.  R.A. was combative and testified that he did not remember where he was on June 24th.    After R.A.’s testimony, the state recalled Officer Filiowich who testified that after R.A. said that “[h]e thought somebody was shooting at his vehicle so he took off with his brother in the vehicle.” R.A. said that his brother’s name is Rarity.   Prior to this testimony, Rarity raised a hearsay objection. The testimony was allowed. Rarity also objected to Officer Filiowich’s squad video, which was nonetheless admitted and played for the jury from the beginning of the car chase through R.A.’s statement.  The court explained that R.A.’s prior recorded statement was admitted as substantive evidence as a prior inconsistent statement under Minn. R. Evid. 801(d)(1)(A).  The court concluded that the statement was not hearsay because it was inconsistent with R.A.’s testimony, it was not cumulative, and it was helpful to the trier of fact.

In the closing argument, the State argued that R.A.’s statement to the officer was more reliable than his trial testimony and asked the jury to convict Rarity for possessing the firearm.    He was convicted and appealed the decision to allow the hearsay.

Both sides agreed that it was hearsay.  Rarity argued that it was not given under oath, therefore it not qualify as an exception to hearsay under Minn. R. Evid. 801(d)(1)(A).  He said without it, they did not have sufficient evidence and the State relied heavily on the evidence by emphasizing it during the closing.

The state argues the statement is an excited utterance and was therefore admissible under an exception to the hearsay rule. See Minn. R. Evid. 803(2). The state classifies R.A.’s prior recorded statement as an excited utterance because there was a startling event, the statement related to the startling event, and R.A. was “under a sufficient aura of excitement caused by the event” to guarantee the statement’s trustworthiness. State v. Daniels, 380 N.W.2d 777, 782 (Minn. 1986).

Going back to the example of Dave telling you Todd called you a “power tool.”   If Todd had called you a “power tool” under oath and then denied than Todd’s statement could come into evidence as a prior inconsistent statement and could come into evidence.  That is what the Judge said.   The State said the Judge was wrong (never a good sign for your appeal) but the “power tool” statement made by Todd is admissible by Dave because Todd was super excited when he said it.  It was an excited utterance because people don’t usually lie when they are excited the statements are considered more reliable than nonexcited people.  Since the State did not argue

Since the State did not argue this in the trial, there was no record of how excited R.A. really was – R.A.’s so excited, he cannot hide it, he’s about to lose his mind and I think he likes it.  Therefore, not admissible.  And Rarity’s conviction gets reversed.  Rarity wins and now people know in Bolivia.