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.
