Category: Right to Remain Silent

Reputed Mob Boss Found Not Guilty of Conspiracy

Many ask how they can be charged with an offense that someone else committed. If the government can’t prove that the defendant agreed to commit the criminal act with the other person, a jury may find the accused not guilty. This is what happened in a recent case where an alleged mob boss was recently found not guilty in a Federal racketeering case. The government alleged that the Defendant had conspired with others to commit a variety of crimes. You can read about the case of George Borgesi and his release from custody after 13 years by clicking here

In Federal Court, 18 U.S. Code § 371 creates an offense “[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose.” In many conspiracy cases the accused must not only agree to commit the crime, but at least one of the conspirators must commit an overt act to accomplish the crime. This is not always a requirement. Furthermore, there is no requirement that the accused knows of the others involved in the conspiracy.

A conspiracy is often confused with aiding and abetting. 18 U.S. Code § 2 defines aiding and abetting as “ (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” With aiding and abetting there is no requirement that an agreement to commit the crime was reached between the accused and the actor. In such a case, if a defendant counseled, gave advice on how to commit the crime or assisted in the completion of the crime, the defendant is may be charged as though the defendant committed the actual crime.

Conspiracy as well as aiding and abetting charges may seriously effect how to best prepare a defense for your trial. Be certain to retain a lawyer to assist you with these charges. Contact Attorney Patrick Flanagan at 651-200-3484 or at PatrickFlanagan@Flanaganlawsit.com if you have questions about your criminal case.

Give a friend a ride – make sure you know what’s in the van before you do

There are times when a person may find themselves in a situation wanting to make some easy money. Usually, if it seems too good to be true, it probably is. In the Case of United States v. Listman, a young man agreed to drive a van cross country for about $1,000 a trip. The Defendant was told there were drugs in secret compartments within the van, although Defendant Listman never actually saw the drugs. However, as the case discusses, the knowledge he did have was enough for a jury to convict him of conspiracy to distribute methamphetamine. Read below to see how a seemingly simple act can get you wrapped up into a conspiracy.

Summary:

UNITED STATES v. LISTMAN (4-12-2011)

The Jury convicted Defendant Listman of conspiracy to distribute methamphetamine for his role driving a van carrying the drugs in a hidden compartment. Defendant Listman did know where the trap doors were on the vehicle and there was no evidence that he ever saw the drugs. However, The Federal Court of Appeals Held that Evidence that Defendant Listman knew the van carried drugs was sufficient to support the conviction. There was no need to need to prove he knew where in the van the drugs were.

Furthermore, The Federal Court of Appeals Held there was no error in allowing an officer to testify that Defendant Listman seemed to be under influence of drugs. This testimony was allowed not to show that Defendant was actually under the influence, but was relevant to show his knowledge, court said.

The Federal Court of Appeals rejected Defendant Listman’s argument that since he did not ever see the drugs and really did not know if he was told the truth about what he was doing, that he should be allowed to provide a “Deliberate ignorance” instruction to the jury.

Complete Decision:

636 F.3d 425 (2011)
UNITED STATES of America, Appellee,
v.
Bruce LISTMAN, Appellant.
No. 10-1721.

United States Court of Appeals, Eighth Circuit.
Submitted: December 17, 2010.
Filed: April 12, 2011.

428*428 Steven Ray Davis, N. Little Rock, AR, for appellant.

Anne E. Gardner, AUSA, Little Rock, AR, for appellee.

Before RILEY, Chief Judge, BEAM and BENTON, Circuit Judges.

RILEY, Chief Judge.

A jury convicted Bruce Listman of conspiracy to possess with intent to distribute at least 500 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. Listman appeals, arguing there was insufficient evidence to support the conviction. Listman also challenges the district court’s[1] evidentiary rulings and inclusion of a deliberate ignorance jury instruction. We affirm.

I. BACKGROUND

A. Facts[2]

From approximately March to November 2008, Listman was a courier for the Valdovinos drug trafficking organization. Candice Russell recruited Listman to drive with her from California to Arkansas because she did not have a driver’s license.

Russell and Listman drove vehicles modified to include a trap door concealing a hidden compartment. The vehicles carried methamphetamine to Arkansas and cash back to California. Listman and Russell deny knowing the specific locations of the traps.

Listman accompanied Russell on four trips.[3] Russell did not tell Listman they were smuggling drugs during their first trip to Arkansas. During their second trip, Russell told Listman “what was going on … [b]ecause it wasn’t right for him not to know.” Russell received approximately $2500 per round-trip. In turn, Russell paid Listman $1000 per trip in addition to methamphetamine.

Starting in September 2008, the offices of the United States Department of Justice Drug Enforcement Agency (DEA) in California and in Arkansas began investigating the Valdovinos drug trafficking organization, surveilling and arresting various participants. During the investigation, the DEA identified Russell as a courier.

On November 21, 2008, California Highway Patrol Officer Anthony Cichella, acting on DEA information relayed to him from an area police department, stopped a gray Toyota Corolla traveling westbound on Interstate 10 near Fontana, California. Russell was driving the vehicle and Listman was a passenger. Russell consented to a search of the vehicle. With a drug dog’s assistance, Officer Cichella discovered a trap over a modified compartment under the rear bench seat. The trap contained a crystalline residue, which Officer Cichella believed to be methamphetamine.

During the encounter, Officer Cichella observed Listman was fidgety, moody, easily agitated, and at times uncooperative. 429*429 This led Officer Cichella to conclude Listman “was definitely under the influence.” Officer Cichella did not conduct a field sobriety test and did not arrest Listman for being under the influence of a controlled substance. Officer Cichella took both Russell and Listman to the police station and seized the Corolla.

B. Prior Proceedings

A federal grand jury charged Listman with conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846.[4] Listman moved to suppress evidence of Officer Cichella’s discovery of the trap, arguing the stop and search violated his Fourth Amendment rights. Alternatively, Listman moved in limine to exclude evidence of the trap, contending “testimony that he was a passenger in a vehicle which contained a hidden compartment which police suspected of being used to transport drugs would unduly prejudice his defense.” The district court denied both motions.

A three-day jury trial began on January 19, 2010. Law enforcement officers and four co-conspirators, including Russell, testified for the government. At trial, Listman objected to Officer Cichella’s observation that Listman was under the influence of drugs during the traffic stop, arguing Listman’s drug use was not relevant. The district court ultimately found the evidence admissible because “although [Listman’s] personal use of methamphetamine does not lead to the conclusion that he must have been involved in a conspiracy, it does show … that methamphetamine was … in his presence … [a]nd … would indicate he had some knowledge.” At Listman’s request, the court instructed the jury “if you believe … Listman used methamphetamine … you may not just from that alone conclude that he was involved in a conspiracy … to possess with intent to distribute.”

At the close of the government’s case, the district court denied Listman’s Fed. R.Crim.P. 29 motion for a judgment of acquittal. Listman testified in his own defense. Before closing arguments, Listman objected to the district court’s inclusion of a deliberate ignorance jury instruction. The district court overruled the objection and included the instruction. The jury found Listman guilty. Listman appeals.

II. DISCUSSION

A. Sufficiency of the Evidence

Listman claims the evidence supporting his conviction was insufficient. We “review[] sufficiency of the evidence de novo and reverse[] only if no reasonable jury could have found the defendant guilty.” Clay, 618 F.3d at 950. We must sustain a conviction when the evidence, viewed most favorably to the government, substantially supports the verdict. See id.

To convict Listman of conspiracy to distribute methamphetamine, “the government must prove: (1) that there was a conspiracy, i.e., an agreement to distribute [methamphetamine]; (2) that [Listman] knew of the conspiracy; and (3) that [Listman] intentionally joined the conspiracy.” United States v. Rolon-Ramos, 502 F.3d 750, 754 (8th Cir.2007) (quoting United States v. Jiminez, 487 F.3d 1140, 1146 (8th Cir.2007)) (internal quotation marks omitted). Listman concedes there was a conspiracy, but argues the government failed 430*430 to prove he knew of or intentionally joined the conspiracy.

The evidence was sufficient for the jury to conclude Listman knew he was transporting methamphetamine. Russell testified she told Listman they were transporting drugs, and it was the jury’s prerogative to believe her. “The jury is the final arbiter of the witnesses’ credibility, and we will not disturb that assessment.” United States v. Hayes, 391 F.3d 958, 961 (8th Cir.2004). The government also produced circumstantial evidence—such as Russell paying Listman cash and methamphetamine, and Russell and Listman using methamphetamine together during the trip—supporting an inference Listman knew he was transporting drugs.

Listman argues “a person who is caught driving a car full of drugs does not possess them in a legal sense if he did not know what he had.” See United States v. Mendoza-Larios, 416 F.3d 872, 873-74 (8th Cir.2005) (noting legal possession could not be inferred based solely on the defendant driving a car containing large quantities of hidden illegal drugs). This proposition, while true, is inapplicable here because the jury heard direct and circumstantial evidence demonstrating Listman knew he was transporting methamphetamine. See United States v. Ojeda, 23 F.3d 1473, 1476 (8th Cir.1994) (holding direct and circumstantial evidence supported finding driver was aware of the presence of drugs within the vehicle). It is not necessary to prove Listman knew exactly where in the vehicle the drugs were hidden.

B. Motion in Limine

Listman argues “the trial court erred in denying Listman’s motion in limine and objections at trial” to Officer Cichella’s testimony regarding the vehicle stop. Specifically, Listman challenges Officer Cichella’s testimony regarding the existence of the hidden trap and his assessment that Listman was under the influence of drugs.

“We review the district court’s evidentiary ruling for clear abuse of discretion, and will not reverse if the error was harmless.” United States v. Hyles, 479 F.3d 958, 968 (8th Cir.2007) (internal citation omitted). “The trial court has broad discretion in determining the relevancy and admissibility of evidence” and “great deference is given to a district court’s balancing of the relative value of a piece of evidence and its prejudicial effect.” United States v. Zierke, 618 F.3d 755, 759 (8th Cir.2010) (quoting Jiminez, 487 F.3d at 1145) (internal quotation marks omitted); see also United States v. Emmanuel, 112 F.3d 977, 979 (8th Cir. 1997) (“The district court’s discretion is particularly broad in the context of a conspiracy trial.”)

We perceive no reversible error here. The very existence of the hidden trap was probative as to whether Listman participated in the conspiracy and the danger of unfair prejudice, if any, did not substantially outweigh this probative value. See Fed.R.Evid. 403. “[E]vidence is not unfairly prejudicial merely because it tends to prove a defendant’s guilt.” United States v. Boesen, 541 F.3d 838, 849 (8th Cir.2008).

Neither are we persuaded the admission of Officer Cichella’s assessment that Listman was under the influence of drugs was an abuse of discretion. The district court found this assertion probative of Listman’s knowledge that he was transporting methamphetamine. The officer’s assessment also corroborated Russell’s testimony that Russell and Listman discussed methamphetamine, Russell paid Listman, in part, with methamphetamine, and they used methamphetamine during the trips. Considering the court’s accompanying 431*431 cautionary instruction that the jury could not conclude Listman was involved in the conspiracy based solely upon Listman’s use of drugs, we find no abuse of discretion. See United States v. Davidson, 449 F.3d 849, 853 (8th Cir.2006) (noting a cautionary instruction to the jury diminished the risk of unfair prejudice to the defendant). Regardless, any error was harmless. It is difficult to imagine the challenged evidence substantially influenced the verdict, see United States v. Donnell, 596 F.3d 913, 919 (8th Cir.2010), particularly because Listman admitted he often used methamphetamine with Russell, and on at least one occasion during their trips to Arkansas, Russell started to smoke methamphetamine.

C. Jury Instruction

Listman argues the district court erred in instructing the jury on a theory of deliberate ignorance consistent with Eighth Circuit Model Criminal Jury Instruction 7.04 (2007), contending “there is absolutely no evidence that Listman deliberately avoided learning about the drug conspiracy.” We disagree.

We review the inclusion of a jury instruction for an abuse of discretion and consider whether any error was harmless. See United States v. Hernandez-Mendoza, 600 F.3d 971, 979 (8th Cir.2010). “A deliberate ignorance instruction is appropriate when the evidence is sufficient to support a jury’s conclusion that `the defendant had either actual knowledge of the illegal activity or deliberately failed to inquire about it before taking action to support the activity.'” Id. (quoting United States v. Whitehill, 532 F.3d 746, 751 (8th Cir.2008)). “Ignorance is deliberate if the defendants were presented with facts putting them on notice criminal activity was particularly likely and yet intentionally failed to investigate.” Whitehill, 532 F.3d at 751. It is “not appropriate if the evidence implies defendants could only have had `either actual knowledge or no knowledge of the facts in question.'” Id. (quoting United States v. Parker, 364 F.3d 934, 946 (8th Cir.2004)).

As discussed above, Russell’s testimony and other evidence supported a conclusion Listman knew he was transporting methamphetamine. The jury could have disbelieved Russell and still concluded Listman knew it was likely he was transporting drugs and chose to remain ignorant. Listman contends, “There is no reason to believe that a methamphetamine user like [Listman] could conduct an investigation worthy of Sherlock Holmes and discover the existence of a multi-level conspiracy to transport methamphetamine.” To the contrary, we deduce it is elementary that someone recruited to drive across the country on multiple occasions in exchange for cash and drugs would suspect criminal activity was afoot. Listman’s own testimony that he wondered whether Russell had methamphetamine on her “[b]ecause she used so much more [methamphetamine] than anyone [Listman had] known before” is strong evidence Listman had some notice. The deliberate ignorance instruction was appropriate, and giving the instruction was not an abuse of discretion.

III. CONCLUSION

We affirm the judgment of the district court.

[1] The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas.

[2] “We recite the facts in the light most favorable to the jury’s verdict[].” United States v. Clay, 618 F.3d 946, 948 n. 2 (8th Cir.2010) (quoting White v. McKinley, 605 F.3d 525, 528 (8th Cir.2010)) (internal quotation marks omitted).

[3] Listman did not return with Russell on the first trip, opting instead to fly home to California.

[4] This indictment superseded an already existing indictment against other participants in the conspiracy. In January 2010, a grand jury returned a second superseding indictment, charging Listman with the same crime.

Police Interrogations should be recorded in Minnesota

Most people know of their 5th Amendment Right to remain silent when questioned by law enforcement. This Right does not mean that a person can lie or mislead. There are times when a government agent, police officer, or investigator will testify that a Defendant made a certain statement to them about the case. This testimony may be derived from the officer’s interpretation of the statement made, a sarcastic comment made by the Defendant, or, according to many Defendants, a false claim made by the officer that the Defendant made the comment. In Federal Court and in many States, this contradiction is to be determined by the jury – through the weight of the evidence. The problem is, for the jury to weigh the evidence, the Defendant will often have to take the stand to deny making the statement. This will subject the Defendant to cross examination and a waiver of his 5th Amendment Rights to Remain Silent.

Minnesota has protected the individual by requiring law enforcement to record all in custody interviews where feasible. This requirement was created in the case, State v. Scales, 518 N.W.2d 587 (Minn. 1984). See below to read this entire opinion. Call me at 651-200-3484 if you have questions about a case you may be involved with.

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.

TOMLJANOVICH, Justice (concurring in part, and dissenting in part).

I agree with the majority that the conviction in this case be affirmed; however, I vigorously dissent from that portion of the majority’s opinion holding that an unexcused failure to electronically record a statement during custodial interrogation must result in a suppression of that statement.

Custodial interrogations need not be recorded to satisfy the due process requirements of the United States Constitution relating to the preservation of evidence, as 594*594 established in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); see Stephan v. State, 711 P.2d 1156 (Alaska 1985). Moreover, as the majority indicates, of all the states that have addressed this issue, only the Alaska Supreme Court has held that the unexcused failure to record a statement during custodial interrogation must result in suppression of the statement.[1] I am unwilling at this time to depart from the rule of the vast majority of courts in this country.

While the recording of statements is desirable in many respects, I am not persuaded that recording is essential to the adequate protection of the accused’s right to a fair trial. I am especially reluctant to assume in the absence of any evidence that trial and appellate courts “consistently credit the recollections of police officers,” slip opinion at 7, and thereby routinely abandon their obligation to fairly assess the credibility of witnesses.

An exclusionary rule is a drastic remedy. I believe such a drastic remedy should be applied only after a full hearing of all the policy implications and with adequate notice to law enforcement. See State v. Spurgeon, 63 Wash.App. 503, 820 P.2d 960, 963 (1991). This is particularly true where a right is not found to be rooted in the state constitution.

I would recommend the matter be referred to the Supreme Court Advisory Committee on Rules of Criminal Procedure for further consideration.

[1] Pursuant to Minn.Stat. §§ 609.185(1) and § 609.185(3).

[2] Pursuant to Minn.Stat. § 609.19(1).

[3] See People v. Raibon, 843 P.2d 46, 49 (Colo. App.1992); Commonwealth v. Fryar, 414 Mass. 732, 610 N.E.2d 903, 909 n. 8 (1993); State v. Buzzell 617 A.2d 1016, 1018-19 (Me.1992); Williams v. State, 522 So.2d 201, 208 (Miss. 1988); Jimenez v. State, 105 Nev. 337, 775 P.2d 694, 696 (1989); State v. James, 858 P.2d 1012, 1017-18 (Utah App.1993); State v. Spurgeon, 63 Wash.App. 503, 820 P.2d 960, 961-63 (1991). See also State v. Rhoades, 119 Idaho 594, 809 P.2d 455, 462 (1991); State v. Gorton, 149 Vt. 602, 548 A.2d 419, 422 (1988).

[4] See State v. Borst, 278 Minn. 388, 397, 154 N.W.2d 888, 894 (1967).

[5] Section 150.3(2) and (3) provide as follows: (2) Violations Deemed Substantial. A violation shall in all cases be deemed substantial if one or more of the following paragraphs is applicable:

(a) The violation was gross, wilful and prejudicial to the accused. A violation shall be deemed wilful regardless of the good faith of the individual officer if it appears to be part of the practice of the law enforcement agency or was authorized by a high authority within it.

(b) The violation was of a kind likely to lead accused persons to misunderstand their position or legal rights and to have influenced the accused’s decision to make the statement.

(c) The violation created a significant risk that an incriminating statement may have been untrue.

(3) Circumstances to Be Considered in Determining Substantiality. In determining whether a violation not covered by Subsection (2) is substantial, the court shall consider all the circumstances including:

(a) the extent of deviation from lawful conduct;

(b) the extent to which the violation was wilful;

(c) the extent to which the violation was likely to have led the defendant to misunderstand his position or his legal rights;

(d) the extent to which exclusion will tend to prevent violations of this Code;

(e) whether there is a generally effective system of administrative or other sanctions which makes it less important that exclusion be used to deter such violations;

(f) the extent to which the violation is likely to have influenced the defendant’s decision to make the statement; and

(g) the extent to which the violation prejudiced the defendant’s ability to support his motion, or to defend himself in the proceeding in which the statement is sought to be offered in evidence against him.

[1] The Alaska Supreme Court did not rely on its supervisory powers but held that an exclusionary rule was necessary to protect a suspect’s right to due process under the Alaska Constitution.

Youth Soccer Player punches Referee who later dies

Despite the many good things to be learned when playing sports, there are the occasions where things go terribly wrong. Not only do these occasions hurt the team for which the player is a member, but also may seriously effect the people involved in the altercations. The young man in the story below lost control of his temper, punched a referee and now may face murder charges. You can also read the article below and then see the Reese Witherspoon video of her asking an officer the always dumb question: “do you know who I am?”

http://www.usatoday.com/story/sports/soccer/2013/05/05/police-utah-soccer-referee-punched-by-player-dies/2136379/

For the Reese Witherspoon video: http://www.youtube.com/watch?v=g9fwe_NEerE

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.