October 2022

RIGHT TO COUNSEL: NO RIGHT TO COUNSEL WHEN INTERROGATION IS MERELY IMMINENT

Appellant was detained as a person of interest in an arson and murder investigation. He was handcuffed and taken to an interview room at the police station. While in the interview room, Appellant was not asked any questions but twice asked police, “Where’s my lawyer?” Appellant was eventually taken to jail and held on an unrelated assault and robbery charges. The next day, Appellant was brought back to the interrogation room. Police told Appellant he was not under arrest for the arson and murder, but because he was under arrest for assault and robbery, police wanted to ask him questions about the arson and murder. Appellant was Mirandized, said he understood his rights and would talk to police, and then talked with police for 30 minutes before saying the interview was over and that he wanted a lawyer. Appellant was charged with and ultimately convicted of both arson and second-degree murder. In his postconviction petition, he argues the district court erred by denying his pretrial motion to suppress his statements in the 30-minute interview with police. His petition was denied and the Court of Appeals affirmed. The Supreme Court accepted review to consider whether Appellant had a Fifth Amendment right to counsel on the night before his interview, the night he asked, “Where’s my lawyer?” The right to counsel attaches when a suspect is both in custody and subjected to interrogation. Appellant was in custody when he asked for a lawyer, but he was not interrogated at that time. The Supreme Court rejects Appellant’s request to create a new rule of law, holding that suspects cannot invoke their right to counsel when custodial interrogation is merely “imminent.” While the Court recognizes the U.S. Supreme Court has recognized that interrogation need not be presently underway for a person to validly invoke their right to counsel, the U.S. Supreme Court has not expressly adopted an “imminent interrogation” rule. The Court is not inclined to adopt such a rule on its own, given the “serious practical difficulties” the rule would pose. The Court does reject the State’s argument that the right to counsel may be invoked only after questioning by police begins. Interrogation in the Fifth Amendment context is not limited to formal questioning, but includes actions by law enforcement likely to elicit an incriminating response. Here, Appellant was not subjected to any compulsion or coercion the night before his 30-minute interview. The arson and murder were not even mentioned and Appellant made no incriminating statements that night. Therefore, Appellant was not subjected to custodial interrogation that night and did not have a right to counsel at that time. His statements the next day, given after a valid Miranda warning and waiver of his rights, were not obtained in violation of Miranda. The Court of Appeals is affirmed. Charette v. State, A20-1476, 908 N.W.2d 310 (Minn. Oct. 5, 2022).

DOUBLE JEOPARDY: JEOPARDY ATTACHES FOR FAILING TO REGISTER AS A PREDATORY OFFENDER UPON INITIAL ASSIGNMENT OF A CORRECTIONS AGENT

Appellant is required to register as a predatory offender and, between 2004 and 2018, was convicted seven times for failing to register. He was assigned a new corrections agent in 2019 and twice refused to sign the required registration paperwork, once in August and once in September. He was charged with one count of failing to register for each refusal. The district court denied Appellant’s motion to dismiss on double jeopardy grounds and the Court of Appeals affirmed. The Supreme Court considers whether double jeopardy limits the number of times the State may charge a defendant for failing to register. The Double Jeopardy Clause does not serve to impose limitations on the legislature’s power to define offenses. Once the legislature has done so, the statutory definition determines the extent of double jeopardy protection. Whether double jeopardy permits the State to simultaneously charge a defendant with numerous violations of the same statutory provision depends on the statute’s “unit of prosecution.” The State cannot repeatedly charge a defendant for the same crime, but violations of the same provision may be charged more than once in a single prosecution if the legislature “intended the facts underlying each count to make up a separate unit of prosecution.” Minn. Stat. § 243.166, subdivision 3(a) requires a person to register “with the corrections agent as soon as the agent is assigned.” The Court holds that the Legislature authorized one “unit of prosecution” for each assignment of a corrections officer under subdivision 3(a). Thus, the State may charge defendants one time for each failure to register following the “assignment” of a corrections agent. Here, Appellant’s convictions from 2004 to 2018 did not bar prosecution of the 2019 offenses, because they involved a different corrections agent assignment. However, the August 2019 offense bars prosecution for the September 2019 offense, because it involves the same corrections agent assignment. Thus, the Court of Appeals did not err when it affirmed the denial of Appellant’s motion to dismiss the August 2019 offense, but did err when it affirmed the denial of Appellant’s motion to dismiss the September 2019 offense. State v. Larson, A21-0220, 980 N.W.2d 592 (Minn. Oct. 12, 2022).

INTERFERENCE WITH THE PRIVACY OF A MINOR: STATE MUST PROVE DEFENDANT KNEW OR HAD REASON TO KNOW A PERSON UNDER 18 YEARS OF AGE WAS PRESENT

Appellant was charged with a felony violation of interfering with a minor’s privacy, under Minn. Stat. § 609.746, subd. 1(e)(2), based on allegations he used a cell phone to secretly record a 15-year-old in a public bathroom stall. The State conceded it could not prove Appellant knew or had reason to know the minor was under the age of 18, but the district court found the State was required to prove only Appellant’s knowledge of the presence of a person, not the age of the person present. After a stipulated facts trial, Appellant was found guilty. The Court of Appeals affirmed. Section 609.746, subd. 1(e)(2), makes it a crime to secretly install or use a device to record or photograph a person in a place “where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts,” and the offense becomes a felony if the defendant knew or had reason to know that a minor was present. The Supreme Court concludes that the plain language of section 609.746, subd. 1(e)(2), requires the State to prove a defendant knew or had reason to know a person under the age of 18 was present when they committed the offense. The Supreme Court notes that “know” in section 609.746, subd. 1(e)(2), is specifically defined in section 609.02, subd. 9(2), and requires “that the actor believes that the specified fact exists.” Applying this definition to the ordinary meaning of the other words in section 609.746, subd. 1(e)(2), the Court finds that the statute requires that the defendant “know or have reason to know that a minor under the age of 18 (the victim) is present when the offense is committed.” The Court of Appeal’s decision and the district court’s pretrial denial of Appellant’s motion to dismiss are reversed. State v. Galvan-Contreras, A20-0366, 980 N.W.2d 578 (Minn. Oct. 12, 2022).

SENTENCING: DISTRICT COURT PROPERLY DENIED REQUEST FOR DOWNWARD DURATIONAL DEPARTURE FOR SECOND-DEGREE INTENTIONAL MURDER

Appellant pleaded guilty to second-degree intentional murder for shooting and killing a man after a verbal argument and physical altercation at a mall. Appellant and the victim were at a mall and started arguing after the victim cut in front of Appellant in a line. The victim kicked Appellant, the two fought and the victim punched Appellant, and Appellant drew his licensed firearm and shot at the victim 15 times. Appellant walked away, then returned and shot the victim again. The court denied Appellant’s motion for a downward durational sentencing departure and sentenced him within the guideline range. The Court of Appeals finds the district court did not abuse its discretion when it denied Appellant’s departure request. A downward durational departure is permitted only if there are identifiable, substantial, and compelling circumstances showing the defendant’s conduct was significantly less serious than that typically involved in the commission of the offense. A district court errs in refusing to grant a departure if it fails to consider legitimate and significant reasons for the departure. Here, Appellant argues the district court focused only on weighing a lack of a valid self-defense claim against a genuine display of remorse, and failed to consider that his crime was significantly less serious than typical, because the victim was the aggressor, that his actions were consistent with a heat-of-passion killing, and that his mental health issues mitigated the seriousness of the offense. Based on Appellant’s sentencing pleadings and the district court’s order, the Court of Appeals is satisfied that the district court did, in fact, consider and reject Appellant’s proffered grounds for a departure. The district court’s sentence is affirmed. State v. Musse, A22-0121, 2022 WL 9627205 (Minn. Ct. App. Oct. 17, 2022).

RESTITUTION: DISTRICT COURT IN POSTCONVICTION PROCEEDINGS MAY ORDER THE REFUND OF RESTITUTION PAID AS PART OF A SENTENCE FOR A CONVICTION THAT IS LATER VACATED

Appellant was convicted of coercion (threat to expose a secret or disgrace) and was ordered to pay restitution. In a postconviction proceeding, her conviction and sentence were vacated, but the district court denied Appellant’s request for a refund of restitution payments made. The Court of Appeals affirmed and determined the Minnesota Incarceration and Exoneration Remedies Act (MIERA) provided the only procedures for Appellant to receive a refund of restitution. In Nelson v. Colorado, 137 S. Ct. 1249, 1252 (2017), the U.S. Supreme Court held that “[w]hen a criminal conviction is invalidated by a reviewing court and no retrial will occur,… the State [is] obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction.” The U.S. Supreme Court found Colorado’s Exoneration Act did not comport with the Fourteenth Amendment, because the act imposed “more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated.” Id. at 1258.
The Minnesota Supreme Court does not decide whether there is a constitutional right to a refund of restitution, finding that the postconviction statute itself permits a district court to order a refund. A convicted person may petition the district court “to vacate and set aside the judgment and to discharge the petitioner or to resentence the petitioner or grant a new trial or correct the sentence or make other disposition as may be appropriate.” Minn. Stat. § 590.01, subd. 1 (emphasis added). The Court finds that this language grants a district court the authority to grant a remedy such as the refund of restitution a petitioner paid because of a conviction that is later invalidated. Such a disposition is appropriate, as it returns the parties to the positions they were in before the judgment. The case is remanded to the district court to determine the proper amount of any refund due to Appellant. Byington v. State, A20-1441, 2022 WL 14701093 (Minn. Oct. 26, 2022).