Check out Pawlenty’s latest political pandering to MADD.  Perhaps we should make sure that the tests we use to convict people of DWI actually work before deciding to ruin peoples lives based upon bad science.

Check out this article from Sunday’s Star Tribune. My heart goes out to the family of Ryan DeZurik. But the tragedy would be compounded by convicting the wrong man.

Check out this KSTP story regarding the consolidation of most Intoxilyzer 5000 source code cases throughout the state. It continues to amaze me that prosecutors expect judges and juries to accept the results of this “mystery machine” without question. This machine (which we still know virtually nothing about) has sent thousands of people to jail over the past two decades. One would think that even prosecutors would want to know if it really works as well as advertised. Hopefully 2010 will be the year that we find out.

SUPREME COURT OF THE STATE OF MINNESOTA

State of Minnesota v. Jeffrey Stein

Appellant was convicted of first-degree burglary based on circumstantial evidence and challenges the conviction based on the theory that the evidence was not sufficient to convict him of the offense charged.  The Supreme Court affirmed his conviction.

Appellant attended a party on the evening of June 1, 2005.  Several others who attended the party testified consistently as to what type of clothing the appellant was wearing that evening, specifically, jean shorts with visible plaid boxer shorts underneath, a black t-shirt over a white undershirt and a light colored baseball hat.  In addition, video surveillance at a bank ATM partially confirmed his clothing on the same night as the party.

In the early morning hours of June 2, 2005 following the party, a spree of burglaries took place within two hours and one mile of one another whereby three female victims called 911 reporting that a young white male intruder had entered their homes and attacked them while asleep in bed.  Each victim’s description of the intruder was generally the same.

During the second attack, the victim struggled with the intruder and was able to pull the T-shirt from his body.  The intruder fled leaving the t-shirt…a black crew neck…behind.  While police secured a perimeter around the area of the burglaries and conducted a manhunt, several residents observed a young white, shirtless male with jean-shorts and plaid boxers running around the neighborhood.  One witness in particular saw appellant run through his yard and enter a home nearby.

The State conducted a DNA analysis of the black t-shirt recovered at the second victim’s house. The State’s DNA expert testified that the DNA profile generated from the T-shirt showed a mixture of DNA from two or more individuals, but with the “predominate profile” in the mixture matching the known DNA sample taken from appellant. The State’s expert estimated the probability of a random person’s DNA profile matching the predominate profile found on the shirt at one in 58 trillion. Appellant’s DNA expert interpreted the same data and concluded that the probability of a random match was one in 644,000.

Furthermore, on the same morning of the burglaries, officers confronted appellant at work and noticed fresh scratches and bruises.

The State charged appellant with three counts of first-degree burglary.  The jury found appellant guilty of one count of first-degree burglary for the incident involving the victim who ripped the shirt off of the intruder but failed to reach a verdict on the two counts relating to the other burglary incidents. Appellant was sentenced to 48 months in prison. The court of appeals affirmed appellant’s conviction, concluding that that the evidence presented at trial was sufficient to support a conviction for burglary.  The appellant appealed based on insufficient evidence.

A conviction based on circumstantial evidence receives stricter scrutiny than a conviction based on direct evidence. In addition to the analysis the court applies in direct evidence cases, the court also considers whether the reasonable inferences that can be drawn from the circumstances proved support a rational hypothesis other than guilt. “Circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.”

After a thorough 15-page analysis, the court affirmed the conviction based on circumstantial evidence.

COURT OF APPEALS OF THE STATE OF MINNESOTA

State of Minnesota v. Terry McDevitt

UNPUBLISHED OPINION

Appellant was convicted of fifth degree possession of a controlled substance and sought to suppress evidence of the cocaine found in is sock arguing that the stop of his vehicle and warrantless arrest violated his constitutional rights.  The district court denied his motion and found him guilty.  Court of appeals affirmed.

Law enforcement had obtained a search warrant for Edward Mack, a known drug dealer.  Before executing the warrant, officers met in the parking lot of a Menard’s in Fridley.  Coincidentally and to their surprise, officers observed Mack enter the same Menard’s parking lot driving the same vehicle identified in the warrant.  Mack parked his vehicle towards the back of the lot.  Shortly thereafter, police watched as a silver sedan drove to Mack’s car and stopped next to it.  The silver sedan was driven by a female and appellant occupied the passenger seat.  Appellant exited the silver sedan and entered Mack’s car.  Officer’s observed appellant remain in Mack’s car for approximately 30 seconds, exited and returned to the silver sedan and drove off.  Officers executed the warrant on Mack and, suspecting a drug transaction had occurred involving appellant, initiated a stop of the silver sedan.

The officer ordered McDevitt out, immediately handcuffed him, and directed him to the ground. He pat-searched McDevitt for weapons but found none. He told McDevitt that Mack was the subject of a cocaine-dealing investigation. McDevitt denied having any cocaine. The officer left McDevitt on the ground and ordered the driver from the car. He asked her if there was crack cocaine in the car, and she immediately disclosed that McDevitt had just purchased three to four “pills” of crack cocaine.

The officer began searching the silver sedan, but McDevitt interrupted and said that he had the crack cocaine hidden in his left sock. The officer searched McDevitt’s sock and found the cocaine.

McDevitt moved the district court to suppress the evidence of his initial statement to the officer that he did not have any cocaine, his statement to the officer that the cocaine was in his sock, and the crack cocaine found in his sock. He based his motion on his assertion that police lacked a reasonable, articulable suspicion to justify stopping his car or a particularized, objective basis justifying his immediate arrest.

The court was not persuaded.

A police officer may stop a person to investigate if the officer has a reasonable, articulable suspicion of criminal activity. Whether police have a reasonable suspicion to stop depends on the totality of the circumstances.

The court reasoned that officers had a reasonable, articulable suspicion of criminal activity to justify the investigatory stop of McDevitt’s vehicle. Officers watched a suspected drug dealer under investigation stop in a large commercial parking lot far from the store entrance in a vehicle that he had driven to three recent controlled buys and that was subject to an active search warrant for drugs. The officers considered the suspicious circumstances: McDevitt’s car stopped next to the drug dealer’s car, McDevitt entered the drug dealer’s car, McDevitt reached down toward the floor, and McDevitt returned to his car after less than one minute. Also, despite the retail location of the encounter, McDevitt demonstrated no interest in legitimate shopping.  The detectives reasonably suspected that McDevitt might have just made a drug transaction.

Because police had a reasonable, articulable suspicion of criminal activity, the investigatory stop of McDevitt’s car did not violate the Fourth Amendment.

State of Minnesota v. Sam Ulland

UNPUBLISHED OPINION

Appellant plead guilty to public nuisance stemming from his failure to fix a damaged roof.  On July 15, 2008, appellant pleaded guilty to the nuisance charge, following his discussion with the prosecutor and the district court judge and after a discussion on the record about appellant’s rights. The court accepted the plea but decided to withhold sentencing for 45 days to allow appellant to fix his roof and abate the underlying public nuisance.

On August 29, 2008, the court stayed imposition of a sentence and also stayed eight of ten days of the probationary jail time so long as appellant paid a fine and finished his roof repairs, both by September 19. On September 19 appellant reported that his repairs remained incomplete, and he moved to withdraw his plea. Finding no manifest injustice requiring otherwise, the court denied the withdrawal motion.

A defendant does not have an absolute right to withdraw a guilty plea once it is entered. In order to withdraw a guilty plea after sentencing, a defendant must establish that withdrawal is necessary to correct a “manifest injustice.”

Appellant claimed that his plea was coerced by an “off the record” statement that the judge made to him.  Finding no proof that the statement had been made, the court ruled that no manifest injustice had occurred the court denied the withdrawal motion.

State of Minnesota v. Joshua McMillen

UNPUBLISHED OPINION

Here, the court addresses another motion to withdraw a guilty plea, this time on the grounds that the plea was not made intelligently.

Defendant pleaded guilty to third degree criminal sexual conduct.  During the plea hearing, appellant’s counsel stated that appellant agreed to “abide by all predatory offender registration requirements … as required by Minnesota statute.” Appellant further acknowledged on the record that he (1) understood the terms of the agreement, (2) had sufficient time to discuss his case with his attorney, (3) was satisfied with his representation, (4) had thoroughly read the petition to enter a guilty plea, (5) had the opportunity to ask questions, and (6) wished to proceed with the plea. Attached to appellant’s plea petition was a settlement offer. One of the agreed-to provisions stated that appellant would “abide by all predatory offender registration requirements.”  Specifically appellant had a lifetime duty to register as a sex offender.

At sentencing, appellant sought to withdraw his plea based on his claim that his lawyer advised that he would have to register as a sex offender for ten years rather than for the lifetime requirement.  Appellant stated that had he known the registry requirement was for life, he never would have pleaded guilty. 

The court denied his motion to withdraw reasoning that the purpose of the requirement that the plea be intelligent is to ensure that the defendant understands the charges, understands the rights he is waiving by pleading guilty, and understands the consequences of his plea.  But the defendant need only be aware of the direct consequences of a plea for it to be intelligent. Direct consequences are those which flow definitely, immediately, and automatically from the guilty plea, namely, the maximum sentence to be imposed and the amount of any fine.  Ignorance of a collateral consequence does not entitle a criminal defendant to withdraw a guilty plea.

State of Minnesota v. James Willette

UNPUBLISHED OPINION

Appellant was charged with theft arising out of stealing guns from his landlord.  At his bail hearing, and after appellant was informed of his rights to which appellant acknowledged that he understood, appellant made an unsolicited confession to taking his landlord’s guns without his permission.  Appellant sought to suppress the confession but the district court denied the motion reasoning that his statement was voluntary he had already been informed of his rights to which he understood.  Appellant was convicted and followed with an appeal.

The district court proceeded to set bail with conditions. The county attorney argued that bail be set at $25,000 based on Willette’s being a flight risk and a threat to public safety. The district court then asked Willette whether he “wish[ed] to comment on the issue of bail or release conditions.” Willette responded much broader than those issues, confessing to the theft:

Yes, Your Honor. These weapons were not used in the commission of a crime. I needed some money to pay bills, and I was living with the individual at the time. And, yes, I did take them without his permission, but I just took them to the pawn shop, Your Honor. They were not used in a crime. I do have family in Pine City. I have an ex-wife and two daughters…. I’m not a threat to the public. Like I said, they were not used in a crime. They were only taken to the pawn shop to pay some bills. And so I would ask that that be taken into consideration of bail…. I do have roots in this community. I would appear.

The district court set bail at $25,000.

Willette argues that his confession should have been suppressed under the Sixth Amendment because the district court’s decision to have a contested bail hearing forced him to represent himself at a critical stage of the prosecution. The court disagreed. Generally, the remedy when evidence is obtained in violation of the Constitution is exclusion of that evidence at a future trial. The Sixth Amendment guarantees a criminal defendant the “assistance of counsel for his defense.” The right to counsel attaches at the defendant’s initial appearance.

After the right to counsel has attached, the defendant is entitled to be represented by counsel at all critical stages of prosecution.   Although the right to counsel attaches at a defendant’s initial appearance, the defendant does not have the right to counsel at a hearing in which the sole purpose is to fix bail and appoint an attorney. Willette’s initial appearance was a hearing for the sole purpose of fixing bail and appointing counsel. Willette therefore did not have a right to counsel at his initial appearance.

In an order  released today, the Minnesota Supreme Court consolidated all non-public defender source code cases with Judge Jerome Abrams of the First Judicial District. Judge Abrams had previously been appointed to handle all First Judicial District source code cases and has done well in that capacity, being fair to both sides in this highly contentious area of the DWI law. By consolidating these cases, the court takes a big step in providing for the fair and efficient handling of what will undoubtedly end up being over a thousand cases involving the source code. Hopefully the manufacturer of the Intoxilyzer 5000 (CMI) will soon live up to its agreement and allow defense experts the access to the source code found in the Federal Settlement. One can hope…