July 2021

CONTROLLED SUBSTANCES: CHEMICAL TEST OF MARIJUANA NOT REQUIRED TO ESTABLISH PROBABLE CAUSE

After police found nearly 60 grams of suspected marijuana in Appellant’s vehicle, he was charged with fifth-degree possession. He moved to dismiss the charge for lack of probable cause, arguing the field test performed on the suspected marijuana merely detected the presence of THC, but did not test the THC concentration to determine if the substance was illegal marijuana or legal hemp. The district court granted Appellant’s motion, finding that, as a matter of law, chemical testing to establish the THC concentration in plant material exceeds the legal limit is required to establish probable cause. The State appealed. The Court of Appeals reverses, rejecting a bright-line rule that a chemical test of a suspected controlled substance is required to establish the substance’s identity. Certainly, proof of the actual identity of the substance is required, but circumstantial evidence and officer testimony may be used to prove the identity of the substance at trial and to show probable cause exists to believe the substance is what the State claims it to be. The record here showed police stopped Appellant for a traffic violation, smelled marijuana in his vehicle, discovered Appellant’s multiple prior controlled substance convictions, recovered substances they suspected to be marijuana after field testing, and obtained a post-Miranda admission from Appellant that he possessed marijuana in the vehicle. If proven at trial, a jury could reasonably infer from these facts that the plant material in Appellant’s vehicle was marijuana. As such, these facts are sufficient to support a finding of probable cause. State v. Dixon, A21-0205, 2021 WL 2908645 (Minn. Ct. App. July 12, 2021).

SIXTH AMENDMENT: FAILURE TO HAVE JURY DETERMINE DATES OF SEX OFFENSES WAS A BLAKELY VIOLATION, BUT HARMLESS ERROR

A jury found Appellant guilty of two counts of criminal sexual conduct against two of his girlfriend’s minor daughters, between January 2004 and March 2018, and between January 2006 and June 2018. The jury was not asked to determine the dates or date ranges for the offenses. The district court sentenced Appellant in accordance with the sentencing guidelines in effect after August 1, 2006, finding no evidence that the offenses occurred in 2006 or earlier. The Court of Appeals agreed with Appellant that the district court violated Blakely v. Washington, 542 U.S. 296 (2004), by finding the earliest offense occurred after August 1, 2006, but found the error harmless.

Blakely protects a criminal defendant’s Sixth Amendment right to be sentenced solely upon factual findings made by a jury. A Blakely violation “occurs when a court determines any disputed fact essential to increase the ceiling of a potential sentence, including factual findings related to offense dates, without the defendant waiving the right to a jury’s determination of that issue.” The parties here agree that the district court’s determination that the offenses occurred after August 1, 2006, violated Blakely. Because a Blakely violation does not rise to the level of a structural error, it is subject to the harmless error standard.

Despite the date ranges alleged in the complaint, no evidence was presented at trial of any criminal sexual conduct acts against either victim before 2009. Appellant also did not argue that he would present evidence relating to the timing of the offenses. Thus, there is no reasonable doubt that the result would have been different if the Blakely violation had not been occurred, and the error was harmless. State v. Reimer, A19-1801, 962 N.W.2d 196 (Minn. 2021).

SIXTH AMENDMENT: RIGHT TO A PUBLIC TRIAL APPLIES TO SCHWARTZ HEARINGS

After a jury trial, Appellant was found guilty of second-degree intentional murder for shooting a man at a gas station. After trial, the district court received evaluation forms from the jurors, on which one juror reported sharing with other jurors during deliberations information on what is taught during conceal and carry permit classes, information that was not presented as evidence at trial. The district court granted Appellant’s motion for a Schwartz hearing to determine if the juror’s conduct in presenting extraneous information during deliberations affected Appellant’s right to a fair trial. After a prehearing conference, a newspaper published the reason for the upcoming Schwartz hearing. The district court bifurcated the Schwartz hearing to allow two jurors who had travel plans to attend early. To prevent the newspaper from “contaminating” the second hearing, the district court closed the first hearing to the public. After both sessions of the hearing, the court concluded the extraneous information did not affect the jury’s verdict.

Among other arguments, Appellant argued on appeal that the closure of the courtroom during the first Schwartz hearing session violated his Sixth Amendment right to a public trial. The public trial right applies to all phases of trial, including pretrial suppression hearings and voir dire, but not including the court’s tending to administrative matters. A Schwartz hearing is not merely administrative, as it involves questioning jurors under oath to obtain information to determine whether a party was denied a fair trial. Such a hearing could result in a legal determination that undermines the result of an entire trial and, the Court of Appeals concludes, is a substantive phase of the criminal trial, implicating the right to a public trial.

In this case, the closure of the first Schwartz hearing to the public was improper, as the district court did not consider alternatives to closure or narrowly tailor the closure to address its concern over media “contamination.” An improper closure is a structural error, but a new trial is not automatically required. Here, a limited remand is deemed the appropriate remedy, given that the improper closure was of only a small segment of the post-trial Schwartz hearing. The matter is remanded for the district court to conduct a new, public Schwartz hearing involving the first two jurors. State v. Jackson, A20-0779, 2021 WL 3027204 (Minn. Ct. App. July 19, 2021).