Month: April 2013

Is This How Ma Barker Got Started?

People are often amazed to find out what they did in the past that may not be considered illegal, or even minor and unrelated to a current charge, can be used as evidence in a current trial by the prosecution. One such scenario is Federal Rule of Evidence 404. This Rule deals with character and acts of an accused. The general rule is that a person’s character or a trait of his character can’t be used at the instant trial to prove that because he acted that way in the past, he must have acted that in the current accusations. Of course, as with everything else, there are exceptions. To see how exceptions were applied in one case where a son taught mom how to shoot a machine gun read the case below

One exception is if the accused offers up a particular trait. Once the accused brings his character into play, then evidence showing this claim not to be true, may be heard by the jury.

Another exception includes matters that include not only previous crimes, but also non criminal acts that are considered wrongs or bad acts. In this instance, again, this information may not be used to prove the character of the person in order to show action in conformity therewith. However, it may be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake.

Such scenarios are outlined in the case below. In this case, the Defendant chose to video tape himself showing mom how to shoot a machine gun. While this act in itself may not have been a crime, the Court said the video could show the jury the Defendant’s motive to possess, intent to posses, his plan to possess, his knowledge to possess, his lack of mistake in knowing what was possessed and his identity toward the possession of the machine gun.

The Defendant chose to take the stand and raised his character as a proud military person protecting his country as character for the jury to consider before passing judgment of guilty or not guilty. Once this door was opened, the government prosecutor was then able to bring up the Defendant’s dishonorable Discharge. This is an example as to why a Defendant should think long and hard before ever waiving their 5th Amendment Rights to Remain Silent and choose to testify at their trial.

United States v. Guy Allen Op.
App. from E.D. Mo.

Fact Summary: A Federal Jury convicted Defendant Allen of one count of possession of illegal machine guns. The Federal District Court in Missouri sentenced defendant Allen to 24 months in Federal Prison.

Defendant Allen Appealed and argues that the Federal District Court erred with its evidentiary ruling at trial by allowing the federal government to show a video of him teaching his mother to fire a machine gun and also to cross-examine him about his military service and discharge.

Issues:

(1) Video Footage

A. The 8th Circuit Federal Court of Appeals Ruled:

1. The Government offered the video under Federal Rule of Evidence 404(b).

2. This court characterizes 404(b) as a rule of inclusion rather than exclusion and will reverse the trial court only when such evidence clearly has no bearing on the issues in the case and was introduced solely to prove defendant’s propensity to commit criminal acts.

3. Evidence is admissible under 404(b) if its:

a. Relevant to a material issue;

b. Similar in kind and not overly remote in time to the crime charged;

c. supported by sufficient evidence;

d. higher in probative value than its prejudicial effect;

4. In this case the video was admissible to show motive, intent, knowledge
or other permissible purposes.

a. Doesn’t matter if the prior act was a crime or not.

(2) Military Service including arrests, charges, subsequent discharge.

a. The 8th Circuit Federal Court of Appeals noted that evidence of character is admissible in criminal cases where the defendant introduces evidence aimed at portraying his own character in a positive light and the prosecution is only
rebutting the inference drawn from such statements.
1. Allen opened the door to being cross examined on his military failings on direct examination by saying he was proud of his military service.

With roomates like this who needs friends

Many times a jury has to determine the credibility of witnesses. This can happen for both lay witnesses and for expert witnesses. See below for for a case that discusses credibility of an expert witness and what federal rule of evidence applies to this evaluation. The Court also discusses what factors are considered for determining constructive possession. If you have any questions, please give me a call at 651-200-3484.

In the case, a roommate thought somebody had burglarized the residence. The roommate then called law enforcement to have them search the house. While searching the house the officers found drugs in the defendant’s room. The defendant was then charged with possession with intent to distribute over 5 grams crack cocaine. The 5 grams was significant because that increased the Defendant’s prison sentence significantly.

At trial, the expert testified that errors in the weighing of the drugs could have resulted in an amount less than 5 grams. In fact, when weighed, the actual amount was under 5 grams. Read the case on my blog to see how the jury was still able to convict the Defendant of over 5 grams.

United States v. Alfred Finch
App. from D. of Neb.

Fact Summary: Officers responded to a possible burglary. The resident, named
Steele, arrived home to find a window pried open and a door “slightly
ajar.” The resident asked officers to check the building for intruders. In one bedroom the officers noticed a plastic bag inside a laundry basket. Inside the bag were 105 small green plastic bags containing crack. There was also a digital scale, .22 caliber bullets and mail addressed to Defendant Alfred Finch. Defendant Finch was Steele’s roommate at the residence. Steele, slept in the bedroom across the hallway from Defendant.

Defendant Finch was indicted by a Grand Jury with Possession With Intent To Distribute more than 5 grams of crack cocaine. Defendant Alfred Finch
went to trial. At trial Finch was convicted of the offense. At trial, Defendant Finch focused his Defense on who really possessed the crack cocaine and also challenged the expert witness who testified as to the weight of the crack cocaine.

The Federal District Court in Nebraska sentenced Defendant Finch to 78 month in Federal Prison.

Issues: Defendant Alfred Finch Appealed his case on the following issues:

(1) On the Sufficiency of Evidence as to possession of the Crack Cocaine.

a. The Federal Court of Appeals 8th Circuits notes that:

1. Possession With Intend to Distribute has 2 elements: (a) possession and (b) intent to distribute.

2. The Possession can be proven as actual possession or constructive possession.

a. Constructive possession occurs when person has dominion over the premises in which the contraband is concealed.

3. There was sufficient evidence that Finch exercised
dominion over the bedroom.

a. Steele testified that he rented house and let Defendant Finch move into the bedroom where the drugs were found.

b. The owner of the house testified that he saw Defendant Finch in that bedroom before.

c. There was mail in the room addressed to Finch.

d. Another person testified that he had purchased
drugs from Finch in that room.

4. Intent can be based on circumstantial evidence such as
drug quantity, packaging, cash, and other relevant evidence.

a. Here there were 105 bags, bullets, a digital
scale and a witness who stated Finch sold to them from the bedroom.

(2) Admissibility of Expert Testimony

a. The Expert used at trial by the government weighed each bag individually and then determined that there was 6.68 grams of crack cocaine. This put the Defendant over the limit of 5 grams for sentencing purposes. This had an effect on the amount of prison time the sentencing guidelines called for.

1. The expert testified that the margin of error on weighing each bag was .03 grams.

2. Finch argued that if the scale was .03 high every time, there could be as little as 3.53 grams because there were 105 bags weighed.

b. At the prosecutor’s request, before trial, the expert emptied each
bag and reweighed it as a whole, the total weight was determined to be 4.28 grams.

1. At trial the Prosecutor attempted to elicit testimony from the expert that testing could have consumed enough drugs in her testing to decrease the amount from over 5 grams to 4.28 grams.

2. Defendant Finch moved to exclude this testimony arguing it was
mere speculation.

a. The Defendant argued to the Federal Court of Appeals that any claim that the expert consumed .76 grams in testing is mere conjecture.

b. The district court allowed this testimony to be heard and considered by the jury.

3. The 8th Circuit Court of Appeals Ruled:

a. The applicable Rule for consideration on the expert is FRE 702.

b. As a general rule, the factual basis of an expert opinion
goes to the credibility of the testimony, not the admissibility. This credibility is for a Jury to decide.

c. The Court determined that that Jury could properly evaluate the credibility of whether amounts were consumed in testing. Therefore the Verdict stands.

Possession of Ammunition leads to 15 years in prison

Possession of Ammunition leads to 15 years in Federal Prison.

Many people are unaware of the consequences that may result from their convictions. A conviction in State Court can have not only consequences on future convictions in State Court by enhancing the penalties, or the charges, but can also effect employment opportunities, housing opportunities and criminal charges in Federal Court.

In the case below, a young man with a prior felony conviction was sentenced to 15 years in Federal Prison for possessing, not a weapon, but ammunition. Possessing Ammunition when a felon is violation of Federal Law. This Defendant’s prison sentence was extended because the Court increased his incarceration for what the federal law considers violent crimes. There are many convictions that may be considered violent crimes in the Federal System. Many people are surprised to find out their Drunk Driving conviction in State Court can have an effect on their criminal history sentencing score in Federal Court.

f you have questions about how prior convictions may effect a sentence, please call me at 651-200-3484, or see my video on my main page to understand how I might help.

To understand what the court was considering when determining a crime of violence in this case, here is the Minnesota Statute on Burglary in the Second Degree. It is important to remember that Burglary is different than Robbery.

MINNESOTA §609.582 BURGLARY.
Subdivision 1.Burglary in the first degree.
Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree and may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $35,000, or both, if:
(a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building;
(b) the burglar possesses, when entering or at any time while in the building, any of the following: a dangerous weapon, any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or an explosive; or
(c) the burglar assaults a person within the building or on the building’s appurtenant property.
Subd. 1a.Mandatory minimum sentence for burglary of occupied dwelling.
A person convicted of committing burglary of an occupied dwelling, as defined in subdivision 1, clause (a), must be committed to the commissioner of corrections or county workhouse for not less than six months.
Subd. 2.Burglary in the second degree.
(a) Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both, if:
(1) the building is a dwelling;
(2) the portion of the building entered contains a banking business or other business of receiving securities or other valuable papers for deposit or safekeeping and the entry is with force or threat of force;
(3) the portion of the building entered contains a pharmacy or other lawful business or practice in which controlled substances are routinely held or stored, and the entry is forcible; or
(4) when entering or while in the building, the burglar possesses a tool to gain access to money or property.
(b) Whoever enters a government building, religious establishment, historic property, or school building without consent and with intent to commit a crime under section 609.52 or 609.595, or enters a government building, religious establishment, historic property, or school building without consent and commits a crime under section 609.52 or 609.595 while in the building, either directly or as an accomplice, commits burglary in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.

United States v. Thomas Boldt Per Curiam
App. from Dist. of Minn.
POSSESSION OF AMMUNITION

Fact Summary: Defendant Boldt was a convicted felon. Defendant Boldt pleaded guilty to unlawful possession of ammunition by a felon. Defendant Bold was sentenced under the Armed Career Criminal Act (ACCA ), 18 U.S.C. § 924.

The Court then sentenced Defendant Boldt to 15 years in prison.

Defendant Boldt appealed his sentence claiming that his prior convictions do not qualify as violent felonies under the Armed Career Criminal Act and also that the sentence violated the 8th Amendment of the Constitution as cruel and unusual punishment.

Issues:

(1) Defendant’s Prior Convictions were for Burglary 2nd Degree.

a. The 8th Circuit Court of Appeals said these are considered violent felonies under Federal law.

(2) Federal Constitution 8th Amendment, Cruel and Unusual Punishment.

a. Defendant Boldt said he didn’t know it was illegal to possess bullets.

b. The 8th Circuit Court of Appeals said there is no 8th Amendment violation. The law applies whether a person is aware that his actions were illegal or not.

Double Jeopardy and Private Searches – “He got weed, He got weed”

Double Jeopardy stands for the principle that a person can’t be convicted for the same crime twice. Sometimes laws are created that involve the exact same action. A conviction for both crimes can have an effect on sentencing and how many years someone may spend in prison.

Below is a case that discusses what the courts look to when considering Double Jeopardy. This case also has a good discussion on when the right to invoke counsel has taken place and when Miranda is necessary.

Miranda is not required for statements taken from people not in custody. In determining custody status, the Courts will look to the objective facts and not the subjective intent of the officers.

Finally, this case also discusses when the 4th Amendment of the Constitution applies for searches and why a search by a private party not acting on the behalf of the government is not governed by the 4th Amendment of the Constitution.

When reading this case, I couldn’t help but think of the Chris Rock video where he plays a man who upsets his girlfriend in the car. When the officers pull them over, the woman starts yelling, “he got weed, he got weed”

United States v. Randall Muhlenbruch
App. from S.D. Iowa

CONVICTION OF RECEIPT AND POSSESSION OF CHILD PORNOGRAPHY BASED
ON SAME ACT VIOLATES DOUBLE JEOPARDY CLAUSE

Factual Summary:

Defendant Muhlenbruch was assaulted by his wife. The wife was ordered to move out of the apartment, but she still stayed. The then Wife claimed she found Child Pornography on her husband’s computer. The wife claims when she confronted Defendant Muhlenbruch he agreed to delete the images but she then convinced him not to do so. When Defendant Muhlenbruch left the home to run errands, the wife had a friend come to the home and copy the Child Pornograpy files onto a CD. The wife’s friend then took the images to the police.

The officers viewed the images and prepared a search warrant. Officers conducted surveillance on the apartment. When Defendant Muhlenbruch and his wife showed up, officers approached Defendant Muhlenbruch. Defendant Muhlenbruch was not placed under arrest but was taken to the police station in the back of a patrol car for questioning. The wife told officers she found the Child Pornography and had friend make copies of it to turn over to the police.

Defendant Muhlenbruch was interrogated and the interrogation was recorded on DVD. Officers said he was free to leave. Defendant Muhlenbruch asked if he needed an attorney. Offices said that was up to him. Muhlenbruch then confessed. After the confession, Defendant Muhlenbruch again asked if he should have an attorney. Finally, Defendant Muhlenbruch asked for a lawyer.

The facts are clear that Defendant Muhlenbruch was not advised of his Miranda rights before his statement was taken. Defendant Muhlenbruch eventually consented to the search of his computer as well. Defendant Muhlenbruch was not arrested and was taken back home.

Defendant Muhlenbruch was indicted by a Grand Jury. Defendant Muhlenbruch filed motions to suppress his statements and the evidence obtained during search of his apartment and the computers hard drive.

The Federal District Court denied the motions. The Federal District Court sentenced Defendant Muhlenbruch to two concurrent 120 month. sentences after jury verdict of guilty on knowingly receiving Child Pornography and knowingly possession Child Pornography.

Issues:

(1) Motion to Suppress Statements and Evidence
a. Defendant Muhlenbruch asserts that his statements should be suppressed because he was nott advised of his Miranda rights and the statements were involuntary.

b. The Federeal 8th Circuit Court of Appeals ruled:

1. Miranda warnings are required when interrogation is initiated by officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

2. Custody is determined under totality of circumstances. The Court looks to whether a reasonable person in his position would consider his freedom of movement restricted to the degree associated with formal arrest.

3. The focus of the analysis is on the objective circumstances, not the subjective opinions or determinations of the officers.

4. The factors to consider are:

a. whether the suspect was informed he was free to
leave and answering was voluntary;

b. whether the suspect possessed freedom of movement;

c. whether the suspect initiated contact or voluntarily
acquiesced to the statement;

d. whether the strong arm tactics or strategies were
employed by law enforcement;

e. whether the atmosphere of the interview was police dominated;

f. whether the suspect was placed under arrest at end
of questioning.

5. In this case the Federal Court of Appeals Ruled that the Defendant was not in custody.

a. Since he was not in custody there is no need to
provide Miranda and no need to evaluate argument that officers denied his unambiguous request for counsel.

b. Regarding the voluntary nature of his statement, the Federal Court of Appeals 8th Circuit said:
1. A conviction based on involuntary confession, obtained through police coercion violates Due Process and any such conviction must be overturned.

2. A statement is considered involuntary if it was extracted by threats, violence, or express or implied promises sufficient to overbear the Defendant’s will and critically impair his capacity for self-determination.

3. The Court will look at the totality of the ircumstances and the conduct of the officers and characteristics of the accused.

4. In this case, The Federal Court of Appeals 8th Circuit ruled that the confession was voluntary.

a. there was no indication he was sleep deprived or under influence of alcohol thus making him more susceptible to coercion.

6. Regarding the motion to suppress the evidence found on the Computer, the Federal Court of Appeals 8th Circuit ruled-

A . A search by a private citizen is not subject to the
strictures of the 4th Amendment of the Constitution unless the private citizen is acting as a government agent.

B. In order for a citizen to be considered a government agent, the Court looks to:

a. whether the gov’t had knowledge of and
acquiesced in the search;

b. whether the citizen intended to assist law
enforcement to further his own purposes; and

c. whether the citizen acted at the gov’t’s request.

C. In this case, the wife did her own independent investigation and her friend copied the files at the request of the wife, not law enforcement. Therefore, there was no government involvement in the initial search and the 4th Amendment of the Constiution does not apply.

7. The Court then ruled on Double Jeopardy for Possession and Receipt conviction for same images.

a. The 8th Circuit Federal Court of Appeals said:

1. In order to establish a violation of the clause, the Defendant must show he was convicted of two offenses that are in law and fact the same offense.

2. if the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offense or only one is whether each provision
requires a proof of a fact which the other does not.

3. For the analysis, the Court looked to Ball v. U.S. 470 U.S. 856 (1985).

a. The Court determined that Congress did not intend to
punish felons for both possessing and receiving the same firearm under different statutes because proof of illegal receipt of a firearm necessarily includes proof of illegal possession of that weapon.

b. The Federal Court of Appeals in the 9th Circuit in the case of U.S. v. Schales 546 F.3d 965, determined possession of Child Pornography is lesser included offense of receipt of Child Pornography.

4. The 8th Circuit Court of Appeals agreed that that proof of receiving child pornography necessarily includes that of receiving child pornography and therefore the multiple convictions violate double jeopardy.

In Custody Statements that are not recorded should be suppressed

In Minnesota, when an officer has a person in custody and where feasible, any statement that is going to be used against a Defendant, must be recorded. This requirement is to protect the rights of the accused who is presumed innocent unless and until proven guilty beyond a reasonable doubt by the government. This requirement to record the in custody statements is derived from the case, State v. Scales, 518 NW 2d 587 – 1994.

Below is a case where the Miranda warning and Scales appears to come into play. However, the Minnesota Court of Appeals denied the Scales violation in this case as lacking merit. While there is not a long discussion about Scales in this case, the case does show how a Scales issue might arise. I have also included the entire , State v. Scales, 518 NW 2d 587 – 1994 case after the Ortega case for reading.

State v Ortega
(SUP CT, 04-18-2012, A10-0765, Dodge Co)

Factual Summary:

Defendant was convicted of aiding and abetting First Degree Murder and was sentenced to life without release.

When Defendant was arrested and before given the Miranda warnings, he said,
“[w]ell then I’m not gonna say nothin’ I just want to have an attorney present if you’re gonna question me.” The interview was terminated. A County Investigator went to arrange transport of Defendant from the station to the jail. The Defendant started talking to the Investigator. The Investigator said he couldn’t
talk because of the Defendant’s request for counsel. Shortly after the investigator left the room, the Defendant said he wanted to speak with investigator.

At a hearing, the Defendant testified that the Bureau of Criminal Apprehension (BCA) agents threatened him and the investigator acted like he was coming to Defendant’s rescue. Defendant then told his version of the events to the investigator.

At the trial, the court admitted the Defendant’s statement to the investigator.

ISSUE: Was Miranda invoked with statement to investigator and does State v. Scales, 518 NW 2d 587 – 1994 apply in this situation?

The Question the Court had to answer in this was whether The Defendant reinitiated a discussion with police after invoking right to counsel. The Supreme Court held that based on the record that the Defendant reinitiated the discussion voluntarily on his own. In arriving at this conclusion, The court says that none of the 3 officers in the room at the time of the statement corroborated Defendant’s account about being threatened and then saved by the investigator.

However, there is no mention made of existence or absence of recording required by Scales. The Defendant raises the Scales issue in a pro se brief, stating that Scales was violated and officers should not have been able to testify about his alleged statement since it was not properly recorded. The Minnesota Supreme Court responded to this appealable issue by stating it lacked merit. Deal

Conviction affirmed.

Below is the Minnesota Case of State v. Scales

518 N.W.2d 587 (1994)
STATE of Minnesota, Respondent,
v.
Michael Jerome SCALES, Appellant.
No. C4-93-1541.
Supreme Court of Minnesota.
June 30, 1994.
Rehearing Denied August 22, 1994.
589*589 John M. Stuart, State Public Defender, Marie L. Wolf, Asst. State Public Defender, Minneapolis, and Michael J. Scales, Stillwater, for appellant.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, and Michael O. Freeman, Linda K. Freyer, Asst. County Atty., Minneapolis, for respondent.
Heard, considered, and decided by the court en banc.
OPINION
WAHL, Justice.
Michael Jerome Scales appeals from a judgment of conviction, after a jury trial in a Hennepin County District Court, of two counts of first degree murder[1] and one count of second degree intentional murder[2] in connection with the stabbing death of Otha Brown. He was sentenced to life in prison.
The primary issue on appeal is whether appellant has a due process right under the Minnesota Constitution to have his entire interrogation by law enforcement authorities recorded or whether this court should exercise its supervisory powers to mandate such a requirement. Appellant also challenges the admission of three photographs and the trial court’s instruction on reasonable doubt. In the exercise of our supervisory powers we mandate a recording requirement for all custodial interrogations. We affirm the conviction.
Otha Brown was the mother of Angela Walker, appellant’s girlfriend, and the grandmother of Michael Scales, Jr., appellant’s two-year-old son. Appellant, Angela, Angela’s three children, including Michael Jr., and two of the Browns’ other grandchildren lived with Otha and her husband Leon in Minneapolis. In spite of her poor health, Otha Brown raised her grandchildren, was active in her church, and was a school bus driver.
At approximately 1:00 a.m. on October 4, 1992, appellant walked into the Browns’ bedroom, told Otha Brown that he was sick, and asked her to drive him to the hospital. Otha Brown agreed to drop appellant off at the hospital, threw a coat over her nightgown, and went out to her van. Leon Brown testified that appellant came back to the bedroom a few minutes later explaining that Otha Brown had forgotten her purse and had asked him to get it. After appellant left, Leon Brown went back to sleep but woke up around 2:00 or 3:00 a.m. and discovered that his wife had not returned and that Michael Jr. was missing.
Around 7:00 a.m., Otha Brown’s body was found in an alley on Osseo Road. She had been stabbed 26 times with a single-edged knife. Two or three of the wounds could have caused Otha Brown’s death. No weapons were found in the area where the body was discovered, but the police recovered a bloody “Emperor Steel” butcher knife and a bloody knit hat at a different location. The blood on the knife and the hat was consistent with Otha Brown’s blood and the knife matched an “Emperor Steel” knife found in the Browns’ kitchen.
Appellant’s statements to the police and the testimony at trial established that during the early morning hours of October 4, appellant was at a crack house getting high and making drug runs in Otha Brown’s van. Timothy Hill, an individual who accompanied appellant on one of these drug runs, testified that he noticed a red substance on the running board of the van. David Neal testified that while he was on a drug run with appellant, appellant mentioned that he had killed someone for money so he could repay people who were threatening to hurt him. While at the crack house, appellant handed out Otha Brown’s checks and credit cards. Jeffrey Pearson, who received several of these items, testified that the plan was for him to purchase merchandise, sell it for cash, and share the proceeds with appellant. Appellant himself 590*590 made two unsuccessful attempts to use Otha Brown’s bank card shortly after the time she was killed.
Otha Brown’s van was found on October 5. Blood, consistent with Otha Brown’s blood, was found throughout the van, but the greatest concentration was on the driver’s door, the signal and shift levers, the driver’s seat, the carpet, and the running board. Her purse was recovered in the vicinity where the van was found.
When appellant and his son returned home around 7:00 p.m. on October 4, the police placed him in a squad car and took him to the police station. Sergeant Michelle Smolley, Minneapolis Police Department homicide unit, and Special Agent Rick Loewen, a BCA investigator on loan to the Minneapolis police, began questioning appellant around 8:40 p.m. Both officers testified that before they questioned appellant, they gave him Miranda warnings. Appellant said he understood his rights, and indicated that he wished to waive them. The officers interrogated appellant for approximately three hours before conducting a formal question-and-answer statement that was simultaneously transcribed. No other part of the interview was recorded.
At the Rasmussen hearing, appellant disputed much of what the officers had said about the nature of the interview and the timing and content of the Miranda warnings. Appellant testified that he was not told he was under arrest or given any warnings until the interrogation was well underway, that when the warnings were given he was not asked if he understood his rights or was willing to waive them, that he was told, untruthfully, that his fingerprints had been found on the suspected murder weapon, and that he was “half liquored” and unable to use the bathroom during the interview. Appellant also denied giving several of the answers contained in the written statement and said that he was not permitted to read the statement before signing it. Appellant moved to suppress the formal statement and his other comments to police on the grounds that he had not received timely Miranda warnings, that the waiver of his rights was not explicit, and that neither the reading of his rights nor his three-hour interview was recorded. The trial court, in denying the motion, declined to rule on whether there is a constitutionally based recording requirement.
At trial, Agent Loewen testified that appellant told two accounts of the events of October 4, 1992. In both versions, appellant said he and Otha Brown drove to the hospital and then decided to leave. When they returned home appellant, at Otha Brown’s request, went inside to get her purse. He noticed that Michael Jr. was awake and brought him out to the van. Otha Brown then drove to a grocery store. At this point, the stories diverged. Initially, appellant said that Otha Brown dropped him off at the store after giving him $20, and he told the police he had not seen her since. He later changed his story and admitted to being “involved” in Otha Brown’s death.
In a formal statement consistent with his second story, appellant said that while he was looking for his ID on the way to the hospital, he reached into the seat pocket and felt a knife. As in the first story, appellant said he returned to the house where he picked up Otha Brown’s purse and his son. Consistent with the second story, however, appellant stated that when they reached the grocery store Otha Brown tried to give him more money than he wanted. He pushed her away while holding the knife in his hand and she fell to the floor of the van.
The next thing appellant remembered was driving away with bloody hands and throwing the knife out the window. When the officers asked appellant if he had blood on his sweatshirt, appellant said he did and admitted that it “most likely” was Otha Brown’s blood. Forensic tests confirmed that the blood on appellant’s clothes, shoe, wallet, players card, and pocket knife was consistent with the blood of Otha Brown. In addition, appellant’s bloody fingerprints were found inside the van. He also had an abrasion on the inside of his thumb that was consistent with the use of a knife.
This appeal clearly focuses on whether there should be a recording requirement for custodial interrogations under either the Due Process Clause of the Minnesota Constitution 591*591 or the supervisory authority of this court. In previous cases, we have been concerned about the failure of law enforcement officers to record custodial interrogations. State v. Robinson, 427 N.W.2d 217, 224 (Minn.1988); State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991). In Robinson we observed that, as a practical matter, many factual disputes about the denial of a defendant’s constitutional rights would be avoided if all conversations between the police and a suspect were recorded. 427 N.W.2d at 224 n. 5. More recently, in Pilcher we “urge[d] * * * law enforcement professionals [to] use those technological means at their disposal to fully preserve those conversations and events preceding the actual interrogation” and warned that we would “look with great disfavor upon any further refusal to heed these admonitions.” 472 N.W.2d at 333. Appellant claims that by failing to preserve the entire interrogation, the police deliberately ignored our warning, thereby depriving him of his right to due process under the Minnesota Constitution.
The trial court distinguished Robinson and Pilcher on the grounds that the police conduct in those cases raised questions about an ambiguous or equivocal statement regarding the need for counsel, whereas in this case appellant does not allege that he asked for an attorney, failed to understand the Miranda warnings, or asked to terminate the interview. Although defense counsel raised the due process issue, the trial court declined to rule on whether appellant was deprived of a state constitutional right.
Appellant relies on Stephan v. State, 711 P.2d 1156 (Alaska 1985), which held that the unexcused failure to electronically record a custodial interrogation violated a suspect’s right to due process under the Alaska Constitution. Id. at 1158. The Alaska Supreme Court found this constitutional right because law enforcement officials had failed to follow the rule it had established five years earlier: “it is incumbent upon [Alaska law enforcement officials] to tape record, where feasible, any questioning [of criminal suspects,] and particularly that which occurs in a place of detention.” Mallott v. State, 608 P.2d 737, 743 n. 5 (Alaska 1980)
A recording requirement, the Stephan court stated, provides a more accurate record of a defendant’s interrogation and thus will reduce the number of disputes over the validity of Miranda warnings and the voluntariness of purported waivers. Stephan, 711 P.2d at 1160-62. In addition, an accurate record makes it possible for a defendant to challenge misleading or false testimony and, at the same time, protects the state against meritless claims. Recognizing that the trial and appellant courts consistently credit the recollections of police officers regarding the events that take place in an unrecorded interview, the court held that recording “is now a reasonable and necessary safeguard, essential to the adequate protection of the accused’s right to counsel, his right against self incrimination and, ultimately, his right to a fair trial.” Id. at 1159-60. A recording requirement also discourages unfair and psychologically coercive police tactics and thus results in more professional law enforcement.
Other courts have noted the protections that a recording requirement would provide but no state as yet has followed the Stephan decision.[3] Commentators have advocated a recording requirement. Yale Kamisar, Brewer v. Williams: A Hard Look at a Discomfiting Record, 66 Geo.L.J. 209 (1977-78); Glanville Williams, The Authentication of Statements to the Police, Crim.L.Rev. 6 (Jan. 1979). The Uniform Rule of Criminal Procedure 243 (1974) provides that information about rights, any waiver, and all questioning shall be recorded where feasible, and must be recorded when the questioning occurs at a place of detention. The Model Code of Pre-Arraignment Procedure § 130.4(3) (1975) also contains a recording requirement.
592*592 The United States Supreme Court has not addressed the recording issue directly but even if custodial interrogations do not need to be recorded to satisfy the due process requirements of the Federal Constitution, we are not precluded from finding a recording requirement under the Minnesota Constitution. This court has “the power to provide broader individual rights under the Minnesota Constitution than are permitted under the United States Constitution.” State v. Murphy, 380 N.W.2d 766, 770 (Minn.1986).
We are persuaded, as was the Stephan Court, that the recording of custodial interrogations “is now a reasonable and necessary safeguard, essential to the adequate protection of the accused’s right to counsel, his right against self incrimination and, ultimately, his right to a fair trial.” Stephan, 711 P.2d at 1150-60. We are disturbed by the fact that law enforcement officials have ignored our warnings in Pilcher and Robinson. In Stephan, the state argued on behalf of the police department that the failure to record an entire interrogation was based on the “chilling effect” recordings had on a suspect’s willingness to talk. 711 P.2d at 1162. Here, however, the state simply asserts that such a requirement is not constitutionally required and questions whether the requirement would, in fact, provide greater protections for defendants or make a substantial difference in police practices.
We choose not to determine at this time whether under the Due Process Clause of the Minnesota Constitution a criminal suspect has a right to have his or her custodial interrogation recorded. Rather, in the exercise of our supervisory power to insure the fair administration of justice,[4] we hold that all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention. If law enforcement officers fail to comply with this recording requirement, any statements the suspect makes in response to the interrogation may be suppressed at trial. The parameters of the exclusionary rule applied to evidence of statements obtained in violation of these requirements must be decided on a case-by-case basis. Following the approach recommended by the drafters of the Model Code of Pre-Arraignment Procedure, suppression will be required of any statements obtained in violation of the recording requirement if the violation is deemed “substantial.” This determination is to be made by the trial court after considering all relevant circumstances bearing on substantiality, including those set forth in § 150.3(2) and (3) of the Model Code of Pre-Arraignment Procedure.[5] If the court finds a violation not to be substantial, it shall set forth its reason for such finding. 593*593 The rule and the remedy will apply prospectively from the date of the filing of this opinion. The Advisory Committee on Criminal Rules may further consider the issue of the proper scope of the exclusionary rule in this context.
Though the police in this case disregarded our prior warnings in Robinson and Pilcher, we affirm appellant’s conviction because even if the unrecorded statements had been suppressed the result would have been the same. Appellant makes no claim that the unrecorded interrogation contained exculpatory evidence and the evidence against him without the statements was very strong.
On the night Otha Brown was killed, appellant convinced her to drive him to the hospital but there is no evidence in the record that they ever arrived at the hospital. Shortly after the time Otha Brown was killed appellant was photographed attempting to use her bank card and, according to several witnesses, appellant was at a crack house handing out Otha Brown’s credit cards and checks with the understanding that he would receive a portion of any proceeds from their use. One of the witnesses who went on a drug run in Otha Brown’s van after she was killed testified that he noticed a red substance on the running board where the police later found a substantial amount of Otha Brown’s blood. Another witness testified that appellant mentioned that he had killed someone for money. When appellant was arrested, his clothes, shoes, and wallet were covered with Otha Brown’s blood. Moreover, his bloody fingerprints were found in the van and the murder weapon matched a knife from the Browns’ kitchen. In light of this evidence, any error in admitting the unrecorded statements was harmless.
Appellant also challenges the admission of three photographs — two of which showed Otha Brown with her grandchildren and one of which showed Otha Brown at Disney World with Mickey Mouse. The admission of photographs is a matter left to the discretion of the trial judge and will not be reversed absent a clear abuse of discretion. State v. Friend, 493 N.W.2d 540, 544 (Minn. 1992). Here, where the photographs were used to provide background information about the family and to personalize Otha Brown and where the number of photographs used for these purposes was small, the trial court did not err in admitting them.
Appellant makes a pro se challenge to the trial court’s instruction that the jurors “should discuss the case with one another and deliberate with a view to reaching agreement if you can do so without violence to your individual judgment.” Appellant claims that the term “violence” had a negative impact on the jury’s understanding of reasonable doubt because it distorted the intensity a juror must feel before changing his or her mind. He also claims that it was error to give the instruction to a nondeadlocked jury. Neither argument is persuasive. First, the sentence appellant complains about is not an instruction on reasonable doubt, but is part of an instruction about the duty of the jurors to discuss the case and is taken directly from CRIMJIG 3.04 (Unanimous Verdict — Duty of Jurors to Discuss). Moreover, in State v. Martin, 297 Minn. 359, 371-72, 211 N.W.2d 765, 772 (1973), we specifically approved the language used in this instruction. We also approved of the instruction being given at the outset of deliberation, because “[t]he jury is forewarned of how it should proceed to forestall a deadlock” and because the “potential for coercion is minimized if the charge is simply reread at a time when the jury appears to be deadlocked.” Id. Thus, the trial court did not err in instructing the jury.
We affirm the judgment of conviction.
Affirmed.

A Pretextual Inventory Search By Law Enforcement of A Vehicle is an Illegal Search

All searches begin with the basic premise; a search warrant is needed for all searches. The 4th Amendment of the United States Constitution requires this. This protects us from unreasonable searches by government officials. We are already presumed innocent and if the government wants to assert differently, the burden is on them to prove it. Therefore, a search warrant is required before government agents, police officers, may search our items. This is, unless there is a recognized exception. However, even with an exception, Officers can only do a search in the parameters of that exception. Going beyond those parameters amounts to an illegal search.

The case below identifies one of the noted exceptions to the warrant request, the inventory search. Officers will often inventory a vehicle after an arrest. This is usually identified in a policy as to when such an inventory search will take place. However, the inventory search can’t be used as a pretext to search for other evidence of a crime. The search must be something that would normally take place for the purpose of the original stop. In other words, the inventory search can’t be a ruse to simply search property that would otherwise not be able to be searched. In the case below, Mr. Taylor was stopped by detectives for failing to signal a lane change. You know something is up when Detectives are making traffic stops. The Federal Court of Appeals found the officers vehicle search to be illegal and suppressed the cocaine found in Mr. Taylors vehicle.

United States v. Christopher Taylor
App. from W.D. Mo.

Fact Summary: Detectives from the local law enforcement agency responded to a request from fellow officers to follow a green truck and initiate a traffic stop if the driver committed a traffic violation. The detectives were advised that Taylor was suspected of involvement in narcotics transaction and narcotics were believed to be in the vehicle. The Detectives observed Taylor fail to signal before changing
lanes and initiated a traffic stop. When Taylor could not produce a valid
insurance card, he was arrested and police took him into custody.

The Police department tow policy had conflicting procedures: one policy required giving Mr. Taylor an option to leave the vehicle at the scene or release the vehicle to another driver; the second policy required impoundment when vehicle is known or believed to have been used in commission of a crime and has evidentiary value.

If the second policy is chosen, Officers must complete an inventory report that details the inventory and listing the items inside car.

An inventory search of the vehicle revealed 74 grams of powder cocaine and other items. The Officer only specifically itemized the 74 grams of powder cocaine. Mr. Taylor also had hundreds of tools in the car. Rather than itemize the tools, the Officer simply wrote, “miscellaneous tools.”

The Federal District Court denied Mr. Taylor’s motion to suppress the cocaine as an illegal search. This denial was then appealed to the 8th Circuit Federal Court of Appeals.

Issues:

(1) Inventory Search

a. The 8th Circuit Court of Appeals analyzed as follows:

1. An inventory search is exception to the warrant requirement.

2. The Government bears burden of showing that its conduct complied
with inventory search exception.

3. The Inventory Search Exception is necessary for protection of the owner’s
property while it remains in police custody; the protection of the police
against claims or disputes over lost or stolen property; and the protection of
the police from potential danger.

4. The search of the vehicle must nevertheless be reasonable under the totality of the circumstances.

a. the reasonableness requirement is met when an inventory
search is conducted according to standardized police procedures, which
generally remove the inference that the police have used inventory searches as a purposeful and general means of discovering evidence of a crime.

5. In this case, the police did not comply with standardized procedures:

a. The written policy required a detailed, itemized list.

b. Taylor’s vehicle had hundreds of tools in it and the
officer simply noted “misc. tools.”

c. The officer’s description is insufficient to remove
inference that search was investigatory.

d. Even if police fail to adhere to standardized
procedures the search is nevertheless reasonable provided its not
pretext for investigatory search.

1. Here, the officer testified that the basis for the traffic stop, the arrest , towing and inventory was all done on a belief that Mr. Taylor had drugs in the vehicle.
2. The police would not have conducted search of the vehicle for the failure to use a turn signal unless they believed they would find evidence of a different crime.

6. Therefore, the search is clearly pretextual and is illegal.

Vegetables lead to Deer Baiting Allegation

The Snow is finally melting and we are in the middle of Turkey season. Soon crops will be planted and those hoping to harvest a deer next fall will be out in the woods preparing the land, fixing deer stands and preparing for one of Minnesota’s annual hunting traditions. As you go out to prepare for the fall hunt, if you intend on creating food plots, be sure you know what the law is in Minnesota. Read the case below to see how the simple use of rotting vegetables made for one frustrating experience.

St v Hansen (CT APPS, A11-546, 11-21-2011, St. Louis Co)

Deer Hunting, Bait, Minnesota Statute § 97B.328

Defendant, a farmer and deer hunter, was convicted of deer baiting for hunting deer on his land. The Defendant had discarded vegetables he placed out in the field to rot and fertilize the soil. The Defendant raises vegetables and sells these to local grocery stores and produce stands. Defendant then his uses unsold vegetables as fertilizer on his land.

Minnesota Statute § 97B.328 is related in full below. In this case, The Minnesota Court of Appeals reversed the conviction after applying the stature. The Court of Appeals found that the Defendant’s practice is a customary and usual farming practice, which is exempted by the statute. Therefore, even if the rotting food may have had another benefit to the farmer, in particular as a hunter, The Court of Appeals found the statute was ambiguous as applied to the Defendant. As the statute is ambiguous to the citizen, the government does not get the benefit of the doubt and the conviction violates due process.
The Conviction is Reversed.
97B.328 BAITING PROHIBITED.
Subdivision 1.Hunting with aid of bait prohibited.
A person may not take deer with the aid or use of bait.
Subd. 2.Removal of bait.
An area is considered baited for ten days after the complete removal of all bait.
Subd. 3.Definition.
(a) For purposes of this section, “bait” includes grains, fruits, vegetables, nuts, hay, or other food that is capable of attracting or enticing deer and that has been placed by a person. “Baiting” means placing, exposing, depositing, distributing, or scattering bait that is capable of attracting or enticing deer.
(b) Liquid scents, salt, and minerals are not bait if they do not contain liquid or solid food ingredients.
(c) Agricultural crops from normal or accepted farming, forest management, wildlife food plantings, orchard management, or other similar land management activities are not bait. This exclusion does not apply to agricultural crops that have been reintroduced and concentrated where a person is hunting.
Subd. 4.Exception for bait or feed on adjacent land.
A person otherwise in compliance with this section who is hunting on private or public property that is adjacent to property where bait or food is present is not in violation of this section if the person has not participated in, been involved with, or agreed to baiting or feeding wildlife on the adjacent property.

Cell Phone Use Increases Prison Sentence By 28 Months

The Federal Court considers many factors when determining an appropriate sentence for a Defendant after conviction. One factor the Courts consider are the sentencing guidelines. These Guidelines can be found in the Federal Sentencing Guidelines Manual. These Guidelines were derived at after studies were completed on how people were sentenced across the nation and other factors. One original purpose of the guidelines was an attempt to eliminate disparity in sentences amongst Defendants convicted of similar crimes.

The Guidelines begin by establishing a base level offense and a criminal history category. The criminal history category is determined by your criminal past. Even State misdemeanor offenses can have a significant effect on this category.

The offense level begins with the base level. This is the category the crime convicted of fits into. From this base level offense, the level may increase or decrease based on several factors. Some of these factors are not necessarily in the specific language of the actual offense for which a conviction occurred. The Court may consider such things as whether the victim is considered vulnerable under the Guidlelines, If the offense is based on the race or religion of the victim, whether the Defendant is to be considered a manager or leader in the offense, and many other considerations. Below is a case where the use of a cell phone to commit the offense enhanced the level to a point where the Defendant will serve an extra 28 months in prison for using the cell phone.

United States v. Neil Kramer
App. from W.D. Mo.

Facts Summary: Defendant Kramer pled guilty to transporting a minor in interstate commerce
with the intent to engage in criminal sexual activity with her. Mr. Kramer acknowledged that he used his cellular telephone to make voice calls and send text messages to the “victim” for a 6 month period. The cell phone did not have internet capabilities. At sentencing, the District Court concluded that the phone was a “computer” and applied a two point enhancement for its use to facilitate the offense
pursuant to USSG §2G1.3(b)(3). The Court sentenced Mr. Kramer to 168 months. The District Court acknowledged that had it not been for the computer enhancement, Mr. Kramer would have been sentenced to 140 months.

Mr. Kramer appealed arguing the enhancement was procedural error
because a cell phone used could only to make voice calls and engage in text messages. Therefore this phone should not be considered a “computer.”

Issues:

(1) The Court may consider a cell phones a computer

a. Defendant Kramer argued:

1. The District Court incorrectly interpreted term “computer” to
include basic cell phone.

2. The sentencing enhancement should apply only if device is used
to access the internet.

b. The 8th Circuit Federal Court of Appeals ruled:

1. USSG 2G1.3(b)(3) provides a 2 level enhancement for use of a
computer to “persuade, induce, entice, coerce or facilitate the travel of
the minor to engage in prohibited sexual conduct.”

2. A “computer” has meaning given in 18 USC §1030(e)(1), which:

a. Means any electronic, magnetic, optical arithmetic,
or storage functions and includes any data storage facility or
communications facility directly related to or
operating in conjunction with such device.

b. However, the definition does not include an automated
typewriter or typesetter, a portable hand held calculator or other similar
device.

3. Based upon this definition, the Court decided there is nothing in statutory definition that excludes devices because they lack connection to the Internet. Therefore, cellular phones are not excluded from the definition of a computer and therefore the 2 level sentencing enhancement applies.

a. The Court noted that a cell phone makes use of an
electronic data processor and the same is true when it is used to send text messages

Thought of tracking the movements of your wife or significant other?

In Minnesota it is a crime to install, or consent to have installed, a tracking device on a motor vehicle that you do not own.    Even if you own the vehicle and consent to have the tracking device installed, you may still be guilty of a crime depending upon what your intentions for the tracking device are.  In the case below, a husband did not trust his wife much.  He installed a tracking device on a vehicle they jointly owned in order to track her movements.  While the Minnesota Court of Appeals ruled that he could not be convicted of illegally using a tracking device, the fact that he used it to track the movements of his wife without her knowledge or consent, along with other evidence, did allow him to be convicted of stalking his wife.

State v.  Hormann (MN CT APPS, 10-19-2011, A10-1872, Douglas Co)
Installing Tracking Device on Car, Minnesota Statute 626A.35.

Fact Summary:  The Owner of Car, Defendant Hormann, was charged with stalking his wife and using a tracking device on the family car to track her movements.  Defendant Hormann was convicted of both.

In the trial, the wife was allowed to testify about their bad marriage by using prior examples of his violence.   The Court of Appeals said this type of testimony was not admissible under Spreigl or 404b evidence.  Minnesota Rule of Evidence 404(b) states that “Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  These “however” reasons are called Spreigl evidence in Minnesota.  This type of evidence was discussed in State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965).  In this case, the Court of Appeals ruled that the prior relationship evidence did nothing to show motive, opportunity, intent, preparation, plan, knowledge, identity (ie a “calling card), or absence of mistake or accident in the charges at hand – stalking his wife and placing a tracking device on the car.  Instead, the prior relationship activities would really be for the purpose of trying to get the jury to believe that because he acted poorly in the past, he must be guilty this time.  Therefore, the evidence is not admissible as 404(b), or Spreigl evidence.

However, as we all learn in trials, that does not necessarily mean the evidence is going to stay out.  There may be another evidentiary rule or exception to the rule that allows the evidence to come in.  That happened in this case.  The Court of Appeals ruled that while the evidence can’t be admitted as 404(b), or Spreigl evidence, it was admissible as history of the existing relationship between the defendant and the victim.

The Defendant also contends that at the time of the offense of placing the tracking device on the car, he had a marital interest in the car.  Therefore he, an owner, consented to the tracking device being placed on the car.  Owner’s consent is a defense to the crime outlined in the statute.

The Court of Appeals agreed that the Defendant was an owner of the vehicle and as he consented to the tracking device being used on the car, that conviction must be overturned.

However, while ownership of the motor vehicle was a defense to the tracking device being installed, it was not a defense to stalking his wife.

As such, the Defendant’s conviction for stalking is affirmed.

What does Conspiracy mean?

Conspiracy Indictments and Charges often confuse Defendants in Federal Court. A conspiracy is essentially a plan by a group to do something unlawful or harmful. However, often times, is put into a cell with alleged co-conspirators who he or she has never met and has no idea who the people are. The first question asked is, “How can I be part of a conspiracy with people I do not even know? I did not plan anything with them. I am not part of their group.”

There are certain elements the government must prove to show a conspiracy existed. However, it is not necessary for the defendant to know all of the other members of the group. It is also not necessary that there be a formalized group. The government try to prove the conspiracy through different linked people. One can lead to the other and that other person may be part of a larger group. It is also possible to conspire with just one other person.

If you have any questions on Conspiracies, please give me a call at 651-200-3484 or email me at patrickflanagan@flanaganlawsite.com

Read below for a sample case on Conspiracy:

United States v. Jobita Avery App. from Dist. of Neb.

Fact Summary: Mr. Avery was convicted by a jury of conspiracy to distribute and Possession With Intent to Distribute more than 50 grams of crack cocaine and less than 500 grams cocaine. The Federal District Court in Nebraska sentenced Mr. Avery to 135 mos. Mr. Avery then appealed his sentence on the basis that there was not sufficient evidence to convict him for these offenses.

Issues:
(1) Sufficiency
a. The case was appealed to the 8th Circuit Federal Court of Appeals. The Court of Appeals analyzed the sufficiency of the evidence argument as follows:

1. In order to convict a Defendant of conspiracy to distribute narcotics, the government must prove the following:

a. There was conspiracy with illegal purpose;

b. The defendant knew of the conspiracy (it is not necessary that the defendant know everyone in the conspiracy); and

c. The defendant intentionally became part of the
conspiracy.

2. In this case, witnesses testified that Mr. Avery and a co-defendant sold them
cocaine and crack cocaine.

b. Therefore, as witnesses established two people assisting each other in an illegal activity, there was sufficient evidence for the jury to find a conspiracy to distribute crack cocaine and cocaine