March 2018

DATE: MARCH 2018

I. INVOLUNTARY INTOXICATION

A. INVOLUNTARY INTOXICATION DEFENSE NOT PERMITTED IF SOURCE OF INTOXICATION UNASCERTAINABLE: Appellant was convicted of indecent exposure. The arresting officer testified at trial that Appellant appeared to be intoxicated, but no chemical tests were administered. Appellant testified he smoked what he believed to shisha, flavored tobacco in a hookah, at the home of an unidentified acquaintance, but that he had an intense reaction, causing him to vomit and black out prior to the incident. The district court found Appellant was not entitled to an instruction on voluntary or involuntary intoxication. First, the Court of Appeals finds that the district court properly instructed the jury on the intent element of indecent exposure. Indecent exposure is a general intent crime, because it simply prohibits willful conduct: voluntary, knowing, and intentional indecent or lewd exposures with no intent to cause a particular result. Because indecent exposure is a general intent offense, the Court of Appeals next affirms the district court’s refusal to instruct the jury on the defense of voluntary intoxication. The voluntary intoxication defense is available only for specific intent crimes, under Minn. Stat. § 609.075. Lastly, the Court of Appeals finds the district court did not err in refusing to instruct the jury on the common law defense of involuntary intoxication. Based on Appellant’s trial testimony, he sought to pursue a theory of innocent-involuntary intoxication, which occurs “when intoxication results from an innocent mistake by the defendant about the character of the substance.” For an instruction on this defense, Appellant was required to make a prima facie showing that (1) he was innocently mistaken as to the nature of the substance taken, (2) the intoxication was caused by the intoxicating substance in question and not by some other intoxicant, and (3) he was temporarily mentally ill at the time of the offense.
The Court of Appeals finds that Appellant did not identify what, if any, substance was the source of his intoxication, so he did not establish that he innocently mistook the shisha he voluntarily consumed for something other than the flavored tobacco he believed it to be. Also, because Appellant failed to show his intoxication was due to an unknown and unidentified substance, rather than the other substances in the shisha he voluntarily consumed, it is impossible to ascertain whether Appellant’s intoxication was caused by the tobacco, the flavoring, some unknown intoxicant, or something else he ingested that day. Finally, when police arrived, he attempted to hide his exposed genitals, which demonstrates he knew his actions were wrong. Thus, because Appellant did not make a prima facie showing on the elements of involuntary intoxication, he was not entitled to a jury instruction on the defense. State v. Mohamed Musa Jama, A17-0481, 908 N.W.2d 372 (Minn. Ct. App. Mar. 5, 2018).

II. SEARCH AND SEIZURE

A. ROBBERY SUSPECT’S PURSE SUBJECT TO SEARCH INCIDENT TO ARREST WHEN IT REMAINS IMMEDIATELY ASSOCIATED WITH PERSON: A grocery store investigator observed Appellant place two food items in her purse and leave the store without paying. The investigator took Appellant’s purse when she tried to hand it to a friend who had also been in the store. Appellant was handcuffed and escorted to the manager’s office with her purse, which was placed on the manager’s desk. When police arrived, an officer arrested Appellant, who had outstanding warrants, and searched her purse, finding narcotics. Appellant was convicted of fifth-degree controlled substance crimes and misdemeanor theft and she appealed, challenging the search of her purse. A search of the arrestee’s person incident to their lawful arrest encompasses personal property immediately associated with the person, and the Minnesota Supreme Court has previously held that a “shoulder purse is so closely associated with the person that it is identified with an included within the concept of one’s person.” State v. Wynne, 552 N.W.2d 218, 220 (Minn. 1996).
Here, however, Appellant’s purse was detained by the store’s employee, so the question is whether it remained immediately associated with Appellant, an issue of first impression in Minnesota. Prior cases have held that a purse may remain immediately associated with a suspect’s person, even if seized and the suspect detained, if the suspect was in possession of the purse when detained. Because Appellant carried the purse when she was detained by the store employee, the purse remained immediately associated with her person during the detention, and police knew or had reason to know Appellant was in possession of the purse when detained, based on the store employee’s statement to police, the officer justifiably searched the purse along with Appellant’s person incident to her lawful arrest. State v. Traci Rankin Bradley, A17-0466, 908 N.W.2d 366 (Minn. Ct. App. Mar. 5, 2018).

B. ENTERING PROPERTY AND SEARCHING CAMPER IN BACKYARD VIOLATES IMPLIED LICENSE TO ENTER PROPERTY FOR “KNOCK AND TALK”: B.F. saw his stolen camper in Respondent’s backyard and notified police. The responding officer verified from the end of the driveway that the camper matched the missing camper’s description. The officer drove halfway down the driveway and parked, then walked to the camper. The VIN and license plate had been removed from the camper, but the officer found a partial VIN stamped on the camper’s frame, which matched part of the stolen camper’s VIN. The officer then entered the camper and found an item of B.F.’s personal property. The officer walked to the backyard garage, where he made contact with Respondent. Respondent allowed the officer to search the garage, where additional items of B.F.’s personal property were found. Respondent then consented to a search of his house, where more of B.F.’s property was found. The district court denied Respondent’s motion to suppress all evidence found from the searches of his property, and Respondent was found guilty of possessing stolen property after a jury trial. The Court of Appeals, however, found that the search of the camper violated Respondent’s Fourth Amendment rights and tainted the subsequent search of the home, and the State filed a petition for review. The parties disagree as to whether the officer performed a trespassory search of the camper when he entered the property to examine it. This question turns on whether the camper was located on Respondent’s property’s curtilage, property afforded the constitutional protections of the home. The camper was within the curtilage of the property if located in area intimately tied to the home. Here, the part of the driveway on which the camper was parked was in close proximity to his home. Part of the backyard and driveway were also bordered by a tall, opaque fence, a wooded area, and trees, which clearly demark his backyard and provide privacy to the area where the camper was parked. The dirt driveway was also Respondent’s main route of entering his home, included a firepit in the center of a turnaround in the driveway, and was often used by Respondent for storage, activities closely related to the home and associated with the privacies of life. While the driveway where the camper was parked is visible from the public road, the curtilage of a home need not be completely shielded from public view to maintain an expectation of privacy in that area. Based on these facts, the Supreme Court finds that the camper was parked on the curtilage of Respondent’s property. Next, the court considers whether Respondent gave the police express or implied license to enter onto the curtilage for a brief “knock and talk.” Respondent had impliedly granted public access to his backyard to seek a back door entrance to the house and garage, based on the well-worn dirt area and definable pathway in the area where the camper was parked. However, the police violated the limitations of this implied license to enter Respondent’s property. The officer deviated substantially from the route that would take him to the back door of the house or garage to get to the camper, parked at the end of the driveway, past the house, and in the back corner of the backyard. The officer entered and inspected the camper thoroughly before turning back to the house. The officer’s purpose in entering Respondent’s property was to inspect the camper, not question the resident of the house. He also remained long enough to thoroughly inspect the interior and exterior of the camper. Thus, the examination of the camper was an unlawful search. The Court of Appeals is affirmed. State v. Quentin Todd Chute, A15-2053, 908 N.W.2d 578 (Minn. Mar. 14, 2018).

III. CONTROLLED SUBSTANCES

A. POSSESSION OF CHEMICAL REAGENTS OR PRECURSORS WITH INTENT TO MANUFACTURE METHAMPHETAMINE: ERROR TO NOT INSTRUCT JURY AS TO WHICH ITEMS IN DEFENDANT’S POSSESSION ARE CHEMICAL REAGENTS OR PRECURSORS: Appellant was convicted of a number of offenses, including possession of chemical reagents or precursors to the manufacture of methamphetamine, under Minn. Stat. § 152.0262, subd. 1(b), after a search of his mother’s residence revealed methamphetamine, a bottle of Draino, batteries, a funnel, and a recipe for methamphetamine. In its jury instructions, the district court did not instruct the jury as to which items in Appellant’s possession were chemical reagents or precursors under the statute. Inconsistent with the model jury instructions, the jury here was instructed that one element of possession of substances with intent to manufacture methamphetamine is the defendant’s possession of chemicals or reagents with the intent to manufacture methamphetamine, but was not instructed that two of the substances found during the search were among those identified in Minn. Stat. § 152.0262, subd. 1(b) as “chemical reagents or precursors.” It was plain error for the district court to omit such an instruction. However, the Court of Appeals declines to reverse Appellant’s conviction, finding it is not reasonably likely the omitted instruction had a significant, or any, effect, on the jury’s verdict, because the jury heard testimony that the search revealed a recipe, ingredients, and equipment for making methamphetamine.
However, Appellant’s sentences for possession of chemicals or reagents with intent to manufacture methamphetamine and a fifth-degree controlled substance crime, finding they are precluded by his sentence for a second-degree controlled substance crime. His sentences for the second-degree controlled substance crime, being a prohibited person in possession of a firearm, and possession of a short-barreled shotgun are affirmed. State v. Russell Vincent Winbush, A17-0344, N.W.2d , 2018 WL 1247240 (Minn. Ct. App. Mar. 12, 2018).

IV. SENTENCING

A. DATE OF OFFENSE FOR “CONTINUING OFFENSE” IS ENTIRE DATE RANGE OF OFFENSE: Appellant was required to register as a predatory offender due to a conviction in 1996 for third-degree criminal sexual conduct, which, under the sentencing guidelines “decayed” on September 23, 2014. Appellant reported living on Larpenteur Avenue in St. Paul on June 9, 2013, but in October 2014, he failed to return an annual verification letter sent to that address. He had previously returned two similar verification forms. In May 2015, police spoke with the resident of the Larpenteur Avenue address, who said Appellant merely stayed with him a few times. A few days later, police made contact with Appellant, who said he was living on Douglas Street and had previously lived in Winifred Street. Appellant was subsequently charged with failing to register as a predatory offender from June 9, 2013, to August 4, 2015.
Following a court trial, the district court concluded that Appellant was required to register and knew of this requirement as well as the requirement to update his address, which he failed to do. The district court found the offense took place from June 9, 2013, to August 4, 2015. At sentencing, the district court found Appellant had a criminal history score of 5, which included 1.5 points for Appellant’s 1996 conviction. On appeal, Appellant argues that the 1.5 points were inappropriate, because that conviction had decayed during the commission of the current continuing offense. He contends the “date of the current offense” was the last day of the offense, August 4, 2015, and, because the 1996 conviction decayed before that date, it cannot be used in calculating his criminal history score. The Court of Appeals affirmed the district court’s calculations, finding the date of the current offense was the first day of the offense, June 9, 2013. The question of whether an offense is “continuing” for purposes of the statute of limitations generally turns on whether the language of the statute imposed a “continuing obligation” on the offender, which the Supreme Court finds that the predatory offender registration statute “unquestionably” does. An offender has a duty to register and update addresses with law enforcement, which are continuing obligations. Under the sentencing guidelines, a prior felony sentence cannot be used in a criminal history computation if a period of 15 years has elapsed since the date of discharge from or expiration of the sentence to the date of the current offense. The guidelines do not define “the date of the current offense,” so the Supreme Court looks to dictionary definitions, which indicate a “date” can be single date or a range of dates. Thus, the guidelines are not ambiguous, because the only reasonable interpretation is that the entire range of dates over which a continuing crime is committed constitutes “the date of the offense.” 15 years had not elapsed between the expiration of Appellant’s sentence for his 1996 conviction on September 23, 1999, and the start of his current offense on June 9, 2013, so the district court did not err in including the 1996 conviction in Appellant’s criminal history score. In affirming Appellant’s sentence, the Supreme Court also finds that failure to submit the question of the date of his offense to a jury did not violate his right to a jury trial. Appellant waived his right to a jury trial on the question of guilt, and a part of the district court’s guilt determination was the dates on which the offense was committed. State v. W.C. Luther Washington, A16-0834, 908 N.W.2d 601 (Minn. Mar. 14, 2018).

V. PLEA

A. DISTRICT COURT’S PARTICIPATION IN PLEA NEGOTIATIONS IS IMPROPER AND TRIGGERS TOTALITY OF CIRCUMSTANCES INQUIRY INTO VOLUNTARINESS OF PLEA: Appellant pleaded guilty to aiding and abetting second-degree unintentional murder arising from the death of E.S., which was witnessed by Appellant’s children. Prior to her plea, the district court encouraged the parties to attempt to resolve the case, commenting on the “serious situation” of having Appellant’s children testify against their mother. Later, before trial, the State updated the court via e-mail regarding the status of the plea negotiations. The court replied that it would not be willing to accept the defendant’s offer of second-degree manslaughter and thought the State’s offer of second-degree unintentional murder was more appropriate. Once trial commenced, the court inquired about the negotiations. After the first two days of trial, Appellant entered a guilty plea to aiding and abetting second-degree unintentional murder. At sentencing, both parties and the court commented that the plea decisions were based largely on avoiding having Appellant’s children testify. Appellant filed a postconviction petition seeking to withdraw her plea based on the district court’s improper participation in plea negotiations. An affidavit submitted by Appellant’s trial counsel stated that, but for the court’s participation, the parties would not have agreed to a plea deal. Appellant’s petition was summarily denied, and the Court of Appeals affirmed, finding that the district court did not excessively involve itself in negotiations. The Supreme Court first considers under what circumstances a district court “participates” in plea negotiations, and explains its statement in State v. Johnson, 156 N.W.2d __, 223 (Minn. _), that “the court should [not] … participate in the plea bargaining negotiation itself.” The Minnesota Rules of Criminal Procedure do not discuss what the judge may do, if anything, as plea negotiations unfold. The Supreme Court looks unfavorably upon recent Court of Appeals’ decisions interpreting Johnson as prohibiting the district court’s excessive involvement in plea negotiations, and “reaffirms the principle that a district court judge should not participate in plea bargaining negotiation itself,” “overrul[ing] court of appeals decisions to the extent that they are inconsistent with this principle.” A judge may only approve or rejected plea submitted for judicial acceptance. However, this rule does not prohibit inquiries into the status of negotiations, sharing sentencing practices, or disclosing nonbinding plea and sentencing information at the parties’ joint request. Here, the district court’s requests to be updated on the status of plea negotiations were appropriate, but the court participated in the negotiations when it gave unsolicited feedback regarding the parties’ settlement offers. The Supreme Court notes that most of the information provided by the judge would not have constituted “participation” if the parties had jointly requested it, but it was not in this case. A statement by the judge that a particular sentence seemed “more realistic” to him, however, essentially presented a counteroffer to the parties’ settlement offers, and under no circumstances should a judge generate or propose a plea deal not presented by the parties. The court rejects a blanket rule of per se invalidity and automatic plea vacatur for a district court’s participation in plea negotiations. Instead, plea withdrawal is appropriate only where a manifest injustice occurs, specifically, where the court’s participation in plea negotiations makes the defendant’s plea involuntarily, based on the totality of the circumstances. Reversed and remanded to allow Appellant to amend petition under the rule of law announced by the Supreme Court. Jetaun Helen Wheeler v. State, A16-0835, N.W.2d __, 2018 WL 1414708 (Minn. Mar. 21, 2018).

VI. ATTORNEY-CLIENT RELATIONSHIP

A. DEATH OF CLIENT ELIMINATES ATTORNEY’S STANDING TO APPEAL ON CLIENT’S BEHALF: Billy Glaze was convicted in 1989 of multiple counts of first-degree murder and second-degree intentional murder. In 2007, he began postconviction proceedings that continued until his death in December 2015. The State then moved to dismiss the postconviction petition as moot. The personal representative of Glaze’s estate moved to substitute herself as the petitioner, but the district court granted the State’s motion to dismiss. The personal representative’s attorneys then filed a notice of appeal on Glaze’s behalf. The Court of Appeals finds that the appeal was not filed by Glaze, who died before the district court’s dismissal order, or his personal representative, who is neither listed in the caption nor mentioned in the body of the notice of appeal, but was instead filed by the attorneys who represented Glaze before his death. Held, Glaze’s attorneys do not have standing to pursue his postconviction claims on appeal, as their attorney-client relationship with Glaze terminated upon his death and they are not aggrieved parties themselves. The Court finds that it lacks jurisdiction to consider the appeal, because there is no aggrieved party before the Court. Billy Richard Glaze v. State, A16-2028, N.W.2d , 2018 WL 1414713 (Minn. Mar. 21, 2018).

VII. RESTITUTION

A. HEARING MUST BE SCHEDULED WHEN RESTITUTION CHALLENGED: After pleading guilty to second-degree murder, Appellant was ordered to pay restitution. He challenged the order based on his inability to pay and requested a restitution hearing. The district court amended its order without a hearing, reducing the amount of restitution. Appellant’s postconviction petition challenging the restitution order was denied, and he appealed. Appellant timely requested a hearing after the district court’s original restitution order, and was, therefore, entitled to a restitution hearing under Minn. Stat. § 611A.045, subd. 3(b). The State’s argument that Appellant’s affidavit challenging the order was not detailed enough fails, as the plain language of Minn. Stat. § 611A.045, subd. 3(a), requires only that an affidavit to meet the offender’s burden of production be served on the State and the court five days before the restitution hearing. This five-day deadline never arose, as a restitution hearing was never scheduled. The district court abused its discretion by not scheduling a restitution hearing. Rico Patrick Howard v. State, No. A17-0976, N.W.2d , 2018 WL 1462296 (Minn. Ct. App. Mar. 26, 2018).

VIII. FIFTH AMENDMENT

A. NO FIFTH AMENDMENT VIOLATION TO REQUEST DNA SAMPLE AFTER INVOCATION OF RIGHT TO REMAIN SILENT: Appellant and two others were found at a residence during the execution of a search warrant at a residence. In an upstairs bedroom, police found a short-barreled shotgun and shells next to a box containing mail addressed to Appellant. Appellant is a convicted felon and not permitted to possess firearms. In a squad car outside the residence, an officer read Appellant a Miranda warning, but Appellant invoked his privilege against self-incrimination. Appellant was arrested and brought to jail. At the jail two hours later, an officer asked if Appellant would sign a written consent to provide a DNA sample. The form was read to and signed by Appellant. While the DNA sample was being taken, Appellant asked why the sample was being taken. After an officer told him it was to compare the sample to DNA found on the shotgun, Appellant said he "had already handled the gun.” Later testing confirmed Appellant’s DNA profile was consistent with the major male profile developed from the samples taken from the shotgun.
Before his trial for possession of a firearm by an ineligible person and possession of a short-barreled shotgun, Appellant motion to suppress the DNA evidence and his admission to handling the shotgun was denied. The Court of Appeals concluded officers could not reasonably have expected the request for written consent to a DNA sample would elicit Appellant’s incriminating statements, and the DNA sample was merely a physical test, not a testimonial communication, and not protected by the Fifth Amendment. The Supreme Court finds that consenting to a search and providing a DNA sample are not incriminating testimonial communications that trigger the Fifth Amendment’s privilege against self-incrimination. Appellant was not “interrogated” when asked if he would consent to taking a DNA sample or when officers responded to his inquiry about why they wanted to take his DNA sample, because neither act was reasonably likely to elicit an incriminating testimonial communication. Officers’ request required only a simple “yes” or “no,” and was not made in a threatening or accusatory manner. Their response to Appellant’s question about why they sought a DNA sample was an honest and straightforward declarative description of the evidence, and police may inform an accused of the evidence marshaled against him. The act of consenting to a search, such as providing a physical DNA sample, without more, is not an incriminating testimonial communication, as it does not disclose information or speak to guilt in any way. The DNA sample may, as here, lead to incriminating evidence, but when a statement is not testimonial, it cannot become so merely because it will lead to incriminating evidence. The Court of Appeals is affirmed. State v. Erik John Heinonen, No. A16-0229, N.W.2d , 2018 WL 1513728 (Minn. Mar. 28, 2018).