April 2020

PRIVILEGE

ORDER FOR SUBPOENA IS NECESSARY TO OBTAIN PRIVILEGED RECORDS FROM RAPE CRISIS COUNSELING CENTER

Respondent was charged with criminal sexual conduct for allegedly engaging in nonconsensual sexual penetration and contact with two women while working as a massage therapist. The Program to Aid Victims of Sexual Assault (PAVSA) assisted the women in reporting the incidents to the police and Respondent moved for an in camera review of all PAVSA’s records relating to the women, under Minn. R. Crim. P. 9.01, subd. 2(3). The court ordered PAVSA to produce the records for in camera review, and PAVSA petitioned for a writ of prohibition preventing enforcement of the order.

The Court of Appeals notes that Rule 9.01, subd. 2, requires the State to assist a defendant in obtaining access to discovery in the possession of governmental agencies not within the prosecutor’s control, upon the defendant’s motion and showing of good cause. However, PAVSA is not a governmental agency, so the State is under no obligation to produce PAVSA’s records.

Instead, to obtain PAVSA’s records, Respondent was required to obtain a court order for a subpoena, as required by Minn. R. Crim. P. 22.01, subd. 2(c). Respondent did not comply with Rule 22.01, subd. 2(c), nor did the district court issue a subpoena. As such, the district court’s order requiring PAVSA to produce records was unauthorized by law. The Court of Appeals grants PAVSA’s writ of prohibition, but “express[es] no opinion… on whether the district court should grant a subpoena for the records, if presented with a proper motion, or on the possible outcome of any in camera review, if ordered.” In re Program to Aid Victims of Sexual Assault, 943 N.W.2d 673 (Minn. Ct. App. Apr. 13, 2020).

DWI

PROOF OPERATOR KNEW CONTROLLED SUBSTANCE WAS IN HIS BODY IS NOT REQUIRED

Appellant was convicted of driving under the influence of a controlled substance after entering a guilty plea. However, on appeal, he argues his plea was inaccurate and invalid, because he did not admit he knew or had reason to know his body contained a schedule I or II controlled substance. When entering his plea, Appellant admitted amphetamine was present in his body when he operated a motor vehicle, but said nothing about whether he was aware of its presence in his body at that time.

Minn. Stat. § 169A.20, subd. 1(7), criminalizes driving, operating or being in physical control of a motor vehicle with any amount of a schedule I or II controlled substance, including amphetamine, in the body. Section 169A.20, subd. 1(7), does not contain a mens rea element, requiring only a general intent to do the act described therein. Generally, strict liability crimes, those that dispense with mens rea, are generally disfavored, and courts interpret statutes silent on intent to contain a mens rea requirement. However, in section 169A.46, subd. 2, the legislature provided an affirmative defense to drivers charged under section 169A.20, subd. 1(7), which the Court of Appeals takes to mean that the absence of a specified mens rea requirement in section 169A.20, subd. 1(7), was not an inadvertent omission.

Moreover, the court finds that a violation of section 169A.20, subd. 1(7), is a public welfare offense, an offense that is not subject to the presumption that the legislature intended a mens rea requirement.

The court concludes that the State is not required to prove that the operator of a motor vehicle knew or had reason to know that a controlled substance was in his body to prove a charge under section 169A.20, subd. 1(7). The court finds Appellant’s guilty plea is supported by a sufficient factual basis, and his conviction is affirmed. State v. Schwartz, 943 N.W.2d 411 (Minn. Ct. App. Apr. 13, 2020).

LICENSE REVOCATION MAY BE USED TO ENHANCE DWI CHARGE ONCE JUDICIAL REVIEW HAS OCCURRED OR RIGHT TO REVIEW HAS BEEN WAIVED

Appellant was arrested for DWI on October 2, 2016, and December 18, 2016. A week after his October arrest, Appellant was notified that his driver’s license was revoked, and the revocation was sustained in April 2017, after he waived judicial review. For his December DWI arrest, Appellant was charged with, among other offenses, second-degree test refusal in August 2017. The charge was enhanced due to Appellant’s October license revocation. Appellant moved to dismiss the second-degree charge, arguing the license revocation could not be used as an aggravating factor unless judicial review has occurred or has been waived by the time of the subsequent offense. The district court denied Appellant’s motion. After a stipulated facts trial, the court found Appellant guilty on both counts. The Court of Appeals affirmed, holding that “a prior license revocation is present as an aggravating factor to enhance a subsequent DWI offense after a driver receives notice of the revocation.”

A person is guilty of second-degree test refusal if they refuse to submit to a chemical test and one aggravating factor was present when the violation was committed. Minn. Stat. §§ 169A.20, subd. 2; 169A.25, subd. 1(b). A prior driver’s license revocation may qualify as an aggravating factor, under Minn. Stat. § 169A.03. Various subdivisions of section 169A.03, when read together, provide that a driver’s license revocation under the Implied Consent Law (sections 169A.50 to 169A.53) can be used as an aggravating factor for purposes of section 169A.25, subd. 1(b), if the revocation was “present when the violation was committed.”

Reviewed or not, a license revocation under the Implied Consent Law comes into existence as of its effective date, which is when the commissioner notifies the person of the intent to revoke their license. Minn. Stat. § 169A.52, subd. 6. Nothing in the Implied Consent Law suggests that a revocation must be reviewed by the time a subsequent offense is committed to be used as an aggravating factor.

The Supreme Court previously held in State v. Wiltgen, 737 N.W.2d 561 (Minn. 2007), that using license revocations as aggravating factors that were unreviewed at the time of charging violated due process. Thus, a license revocation under the Implied Consent Law is “present” upon its effective date and may be used to enhance a DWI charge once the revocation has been judicially reviewed and sustained or the right to review has been waived.

In this case, Appellant’s license revocation was present in October 2016, when he received notice of the revocation, which was before he committed the test refusal offense in December 2016. He waived review of the revocation in April 2017, at which point the State could use the revocation to enhance the charge relating to his December 2016 conduct. The Court concludes that the State properly used Appellant’s license revocation as an aggravating factor. State v. Anderson, 941 N.W.2d 724 (Minn. Apr. 15, 2020).

EVIDENCE

POST-ARREST STATEMENT TO POLICE ABOUT PURCHASE OF DRUGS FROM DEFENDANT IS ADMISSIBLE UNDER RESIDUAL EXCEPTION TO HEARSAY RULE

After receiving a tip, police observed Appellant sell methamphetamine to L.P. Appellant and L.P. were arrested, after which L.P. submitted to a recorded interview and made several statements regarding the drug transaction. At Appellant’s trial, the district court admitted L.P.’s statements as substantive evidence under Minn. R. Evid. 807, the residual exception to the hearsay rule. At Appellant’s trial, L.P. recanted her statements to police and testified she did not purchase methamphetamine from Appellant. The jury found Appellant guilty of first-degree sale of a controlled substance and second-degree possession of a controlled substance, and the Court of Appeals affirmed.

Rule 807 allows for the admission of hearsay not specifically covered in other hearsay exceptions “but having equivalent circumstantial guarantees of trustworthiness.” The totality of the circumstances surrounding a proffered statement must be examined to determine whether the statement is trustworthy. The district court here balanced the following relevant circumstances: some of the investigator’s questions to L.P. were leading or suggestive, but the interview as a whole was not “entirely leading or suggestive;” although L.P. admitted to just having used drugs and the recording was difficult to hear clearly, she was not obviously impaired; L.P.’s statement was against her penal interest; and L.P. was available for cross-examination at trial. The Supreme Court agrees with the district court’s assessment of these factors.

Additionally, while a recantation may lessen the trustworthiness of a statement, the court must determine whether “other uncontroverted evidence discredits the recantation,” whether there is a motive to falsely recant, whether there is an inconsistency in the recanted version of the statement itself, and whether the prior hearsay statements are strongly corroborated. Some of L.P.’s original statements were corroborated by other evidence, her recantation came only after urging from a friend, and L.P. had a prior intimate relationship with Appellant. These facts are not enough for the Supreme Court to conclude that the district court erred in determining that L.P.’s recantation did not render her prior statements untrustworthy.

The Supreme Court finds the district court properly balanced all of the relevant circumstances of the trustworthiness of L.P.’s statements to law enforcement and, therefore, properly admitted them into evidence under Rule 807.

When admitting evidence under Rule 807, a district court should make findings regarding the enumerated requirements of Rule 807, including: (1) “the statement is offered as evidence of a material fact; (2) “the statement is more probative on the point for which it is offered than any other evidence” procurable “through reasonable efforts” by the proponent; and (3) the general purpose behind the rules of evidence and the interests of justice are served by the admission of the statement. The district court here made findings as to requirements (1) and (2), but not (3). However, this failure does not automatically require reversal, as the appellate courts can independently evaluate the record. Here, the Supreme Court finds that admission of L.P.’s statements serves the purpose of Rule 807 and the interests of justice. State v. Vangrevenhof, 941 N.W.2d 730 (Minn. Apr. 15, 2020).

THE CONTENT OF AN EXCERPT OF A WRITING OR STATEMENT MUST BE EXAMINED TO DETERMINE IF CONTEMPORANEOUS ADMISSION OF ADDITIONAL MATERIAL IS NECESSARY TO CLARIFY INACCURACIES

Respondent went to trial on a charge of second-degree criminal sexual conduct arising from allegations that he sexually abused his child. Prior to being charged, Respondent was interviewed by police and repeatedly denied the allegations, asserting his children’s mother fabricated the allegations. At trial, the State requested to play a limited portion of the hour-long interview, specifically, the portion during which the State alleged Respondent lied about the living arrangements with his children, to “show[] consciousness of guilt.” Respondent asked that the entire recording be played. The district court allowed the State to play the short portion of the recorded interview. Respondent testified about his repeated denials of the allegations during his police interview, and he was cross-examined about the interview. The jury found Respondent guilty. His postconviction petition was denied, but the Court of Appeals reversed and remanded for a new trial, finding that the entire interview should have been played.

The Supreme Court, however, reverses the Court of Appeals. The court addresses the analytical approach to be used when applying Minn. R. Evid. 106, which provides: “When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recording which ought in fairness to be considered contemporaneously with it.” As to the fairness requirement, the Supreme Court concludes “that Rule 106 applies when the proposed additional material (1) relates to the facts offered in an excerpt of a recorded statement or writing and (2) is necessary to correct a misleading or distorted impression of facts created by the admitted excerpt or writing.” The district court must examine the content of the excerpt or writing admitted, rather than the purpose for which it was admitted. If the substance of the excerpt so inaccurately or unfairly distorts the evidentiary facts that it requires immediate correction of its content, fairness requires that additional material be contemporaneously admitted.

The court determines that the district court’s consideration under Rule 106 was appropriate and that it did not abuse its discretion in admitting only the excerpt of Respondent’s interview. The excerpt covered only limited information about sleeping arrangements, and the remainder of the interview was unrelated to that topic. Thus, admitting the entire interview was not necessary to give the jury a full understanding of what Respondent said in the excerpt or to clarify a misimpression created by the excerpt. State v. Dolo, 942 N.W.2d 357 (Minn. Apr. 29, 2020).

MINNESOTA IMPRISONMENT AND EXONERATION REMEDIES ACT (MIERA)

“ANY EVIDENCE OF FACTUAL INNOCENCE” DOES NOT INCLUDE EVIDENCE ABOUT VICTIM’S PRIOR DISHONESTY THAT IS UNRELATED TO UNDERLYING CRIME

After a jury trial, Appellant was convicted of criminal sexual conduct charges relating to reports made by Appellant’s daughter. His postconviction petition was granted and his convictions were vacated due to ineffective assistance of counsel. The State did not retry the case and dismissed the charges. The district court denied Appellant petition for an order declaring him eligible for compensation under MIERA, and he appealed.

After being released from incarceration following a reversal or vacation of his conviction, a person may seek exoneration compensation by first petitioning the court for an order declaring them eligible for compensation based on exoneration. “Exonerated” means that “a court… ordered a new trial on grounds consistent with innocence and the prosecutor dismissed all felony charges against the petitioner arising from the same behavioral incident.” Minn. Stat. § 590.11, subd. 1(b)(1)(ii). The issue here is whether Appellant received a new trial “on grounds consistent with innocence.”

“On grounds consistent with innocence” is defined to mean either: “(1) exonerated through a pardon or sentence commutation, based on factual innocence; or (2) exonerated because the judgment of conviction was vacated or reversed or a new trial was ordered, and there is any evidence of factual innocence whether it was available at the time of investigation or trial or is newly discovered evidence.” Minn. Stat. § 590.11, subd. 1(c) (emphasis added). The Court of Appeals holds that, by its plain terms, the phrase “any evidence of factual innocence” means any evidence that shows some fact establishing the absence of the petitioner’s guilt.

Here, Appellant received a new trial for ineffective assistance of trial. Proving ineffective assistance of counsel did not require Appellant to establish his factual innocence. However, in finding Appellant’s trial counsel was ineffective, the district court noted that his trial counsel failed to procure testimony and documents that related to the victim’s character for untruthfulness. Appellant argues this evidence goes beyond mere impeachment evidence and makes it more likely that he did not commit the offenses. The Court of Appeals finds, however, that evidence showing the victim’s pattern of past dishonesty does nothing to show Appellant’s lack of guilt, but, instead, goes only to her credibility as a witness.

The Court of Appeals notes that a petitioner may still be able to meet MIERA’s exoneration requirement through impeachment evidence. For example, if a witness explained the victim told them the victim had fabricated the entire claim, this is impeachment evidence but also represents “any evidence of factual innocence.” Here, however, the victim never recanted her accusations and the accusations were corroborated by other witness testimony. Thus, Appellant does not meet MIERA’s threshold exoneration requirement, and the district court properly denied his petition. Freeman v. State, A19-1247, 2020 WL 1983227 (Minn. Ct. App. Apr. 27, 2020).

HOMICIDE

DEPRAVED-MIND MURDER REQUIRES THE DEFENDANT’S AWARENESS THAT HIS CONDUCT CREATES A SUBSTANTIAL, UNJUSTIFIABLE RISK TO HUMAN LIFE

While intoxicated, Appellant collided with an eight-year-old child and his father while driving a snowmobile at a high rate of speed on a frozen lake. The child later died. Appellant was convicted of seven offenses but sentenced only on one count of third-degree murder and one count of gross misdemeanor criminal vehicular operation.

First, the Court of Appeals finds that the district court erred in its instructions to the jury as to the mens rea element of third-degree murder, but that the error was not plain. Third-degree murder requires the State to prove the defendant (1) caused the death of another, (2) committed an act that was eminently dangerous to others, and (3) evinced a depraved mind without regard for human life. The “depraved mind” element is the equivalent of a reckless standard, and the recklessness definition the court adopts here comports with the most common legal usage of “reckless.” The district court did not define “reckless” for the jury, a term for which the ordinary definition differs from the legal definition. Without the legal definition, the jury would have been allowed to find Appellant guilty if he acted in a careless manner and knew only that his conduct may result in someone being killed, which is not enough to satisfy the elements of third-degree murder. However, the Court of Appeals finds that this error by the district court was not plain. The district court’s instruction was a verbatim rendering of the third-degree murder model instruction and it did not contravene existing case law. As the error was not plain, it does not require reversal of Appellant’s third-degree murder conviction.

Next, the Court of Appeals determines that the district court did not abuse its discretion by admitting Spreigl evidence of Appellant’s prior alcohol-related offense. The court also finds the evidence was sufficient to support Appellant’s third-degree murder conviction, and that Appellant failed to demonstrate that the cumulative effect of any alleged prosecutorial errors deprived him of his right to a fair trial.

Lastly, the court holds the district court erred by entering two convictions, rather than one, for each of the following offenses: two counts of criminal vehicular operation and two counts of DWI. These four counts arose from the same behavioral incident. Thus, the case is remanded to the district court to vacate one of each of the DWI and criminal vehicular operation convictions. State v. Coleman, A19-0708, 2020 WL 1982274 (Minn. Ct. App. Apr. 27, 2020).