*1 аttorney fees and their respondents award Minnesota, in respondents’ Respondent, motion granted STATE of
costs. We 25, 2014, stating: filed on June opinion our Frank T. Mab- deny the motion of We Greenstein, firm, Mabley
ley and his law ALI, Appellant. Mahdi Hassan L.L.C., Wall, (collectively “Mabley”) & A12-0173, grant and we file a brief in this court Nos. A13-0996. motion to strike Mab- the Leiendeckers’ Supreme Court Minnesota. because, although Mabley ley’s brief the Leien- against represented AWUM 8,Oct. lawsuits, he is not a deckers in several before this party proceedings The Leiendeckers are also enti
court. any attorney
tled to fees and costs responding Mabley’s in
they incurred with Minn. R. Civ.
brief accordance they file and long P. 139.06 so as
App. support their re
serve documentation
quest days opinion within 15 after this Mabley’s response, any, if
filed. request
Leiendeckers’ must be filed require
served in accordance with the Civ.App. Minn. R. P.
ments of
subd. 2.
Respondents timely have filed and served costs,
a motion for an award of fees and supporting their
along with documentation
request. responded Defendants have not respondents’ motion. files, records, upon
Based all the herein,
proceedings
IT IS HEREBY ORDERED respondents Lawrence Leien-
motion
decker, attorney fees et al. for an award of to defen- responding
and costs incurred be, is, granted,
dants’ brief and the same $4,306.80. the amount
BY THE COURT: David R. Stras
/s/ Justice
Associate
DIETZEN, J., part took no of this case.
consideration or decision *5 Swanson, General, Attorney Saint
Lori
MN,
Freeman,
Paul,
Hen-
and Michael O.
Burdorf,
County Attorney, Jean
As-
nepin
MN,
Attorney, Minneapolis,
County
sistant
respondent.
for
Middlebrook,
Cathryn
Appellate
Chief
Defender, Lydia
Lijó, As-
Public
Villalva
Defender,
Paul,
State Public
Saint
sistant
MN,
appellant.
for
Miller,
OPINION
conviction is unconstitutional under
we vacate that sentence and
for
remand
GILDEA, Chief Justice.
resentencing
first-degree premedi-
on
(“Mahdi”)1
Appellant Mahdi Hassan Ah
tated murder
following
conviction
a Miller
count of first-degree
convicted of one
hearing.
premeditated
and
murder
two
counts
This
from
case arises
incident
first-degree felony
shooting
murder
took place
January night
on a
At
killing
during
robbery
three men
7:44 p.m.,
January
on
two
men
masked
Minneapolis
Seward Market in
on Jan-
walked
Seward
into the
Market on East
uary
2010.2 We consolidated Mahdi’s
Franklin
in Minneapolis.
Avenue
first
appeal
postconviction
direct
his
ap-
man, who had covered his
blue
face with a
peal. On appeal, Mahdi raises a series of
bandana, held a black
pistol
semiautomatic
First,
arguments.
challenges
he
post-
right
His accomplice,
hand.
a taller
conviction
of postconviction
court’s denial
man whose
striped
black-and-white
shirt
Second,
relief.
argues
Mahdi
that the dis-
poked
coat,
out frоm under his winter
trict
by allowing opinion
court erred
testi-
entered behind him. When the
en-
men
mony relating to surveillance videos that
tered,
Elmi,
Osman
an employee of the
him
identify
gunman.
tended to
as the
market,
Warfa,
and Mohamed
relative
Third,
argues
mandatory
Elmi’s,
sitting
were
behind the store’s
imposition of a sentence of life without the
counter. The
with
gun
man
thrust
(LWOR)
possibility of release
violates the
in Elmi’s face
both Elmi
and Warfa
Eighth
prohibition
Amendment’s
on cruel
put their
hands in
air. The
man
and unusual punishment under Miller v.
the gun then pulled
ground.
Warfa to the
—
Alabama,
-,
U.S.
S.Ct.
The accomplice went to the back of the
(2012). Fourth,
Ali.3
from
picked
Mahdi
them
school
police
After
to
talked
Abdisalan and
Victoria,
said,
a red
Abdisalan
Crown
cousin,
a suspect,
ruled him out as
his
over the course of the next few hours the
Ahmed,
police.
turned himself
Once
Minneapolis
three teens went to the
im-
he had
attorney
an
worked out a deal
pound
SuperAmerica
lot and a
before
State,5
with the
Ahmed admitted his role
off
dropped
Mahdi
Abdisalan
at home
and verified that he
murders
p.m.
around 6:80 or 7:00
trying customers in
control the
the back
information, police
Based on that
found
shooting.
the store when Mahdi started
surveillance
from several
video
stores the
three teens visited that afternoon.
In the
From the three men’s statements to po-
videos
SuperAmerica,- police
from the
saw lice,
videos,
surveillance
and witness testi-
pull up
a red
gas
Crown Victoria
a
mony, police were able to construct a pic-
pump.
out
got
passenger
Someone
ture of what
on the
happened
afternoon
seat of the
ear and entered
store.
January
picked
murders. On
Mahdi
entered,
Once he
could see a
police
black-
up
a
Ahmed and Abdisalan
from school in
striped
poking
and-white
shirt
out from red
Crown Victoria
Mahdi was bor-
jacket.
underneath
he
his
When
turned
rowing
acquaintance.
from
They
went
and looked at one
the surveillance cam-
to gas
buy
station so Mahdi could
some-
eras,
immediately
police
noticed that it was
thing,
dropped
and then Mahdi
the cousins
not Abdisalan in
shirt.
the black-and-white
back off at
because
school
Mahdi had to
video,
After police
they
saw the
believed
drive
the owner of
car to work. Mahdi
that the
person
SuperAmerica
video
returned for
10 to
the cousins
15 minutes
was not Abdisalan but was the unidentified
teenagers
later.
The three
then drove
accomplice at the back of the Seward Mar-
coat factory
Wilson’s Leather
outlet in
shootings
ket when the
happened. The
North
where
Minneapolis,
Abdisalan stole
police then
ques-
asked Abdisalan more
John jacket
faux suede Sean
with fur
cousin,
tions about his
Ahmed.
He
jacket
around the collar.
threw the
he
police
Later
that night,
also arrested
big,
was wearing before—a
dark coat with
Mahdi.
read him his Mi-
police
After the
car,
put
hood on it—in the
on his
randa
rights,4
knowing any-
Mahdi denied
jacket.
new
thing about the murders at the Seward
three оf
drove all
them to the
slowly
Market.
police
As
confronted him
lot to
Minneapolis impound
retrieve
with evidence of his activities with Abdisa-
car, but
after
they left
Mahdi discovered
day,
lan and
Ahmed over
Mahdi admit-
he
enough money.
ted to
did not have
After
going
gas
station and the
station,
impound
Ahmed,
trip
they
lot
another
to a
gas
with Abdisalan and
went
*8
money
but he never
to playing
admitted
a role in the Dahabshiil
transfer business
cousins,
pleaded
3. Ahmed
eventually
guilty
Ali and
Ali are
5.Ahmed
Abdisalan
and was
attempting
counts
but
convicted of three
neither of them is related to Mahdi Ali.
aggravated robbery
first-degree
commit
609.245,
(2012).
under Minn.Stat.
subd. 1
Arizona,
436,
4. Miranda v.
384 U.S.
86 S.Ct.
6-year
He was
three
sentenced to
consecutive
(1966).
Ahmed testified that when back shootings, after he asked the ear place Mahdi’s trial took over two weeks why people. Mahdi he shot those He said September September 2011. On knew,” said, “they meaning jury guilty found Mahdi of one count of they knew who he was. murder, first-degree premeditated two murder, 4, 2010, February grand jury second-degree in- counts of and three On premedi- first-degree felony dicted Mahdi on three counts of counts of murder while degree committing attempting ag- in the first under or to commit tated murder 31, 2011, 609.185(a)(1), 609.11, gravated robbery. §§ On October Minn.Stat. 2(1), (2012), 609.05 for the the district court sentenced Mahdi two subd. Mohammed, Warfa, Elmi, re- possibility as life sentences with the deaths of first-degree felony years three murder in lease after 30 for the well as counts Warfa, degree committing felony the first while or at- murders of Mohammed and for the robbery mandatory commit and a LWOR sentence tempting aggravated 609.185(a)(3), 609.11, first-degree §§ murder of Elmi. premeditated under Minn.Stat. *9 improperly Mahdi his conviction to this excluded his birth as appealed certificate court, September Second, argues but on evidence. he the that granted stay appeal to to his motion the postconviction improperly on court relied pursue postconviction pro- allow Mаhdi to the “law of the doctrine case” to assert ceedings. already our court the that had held that subject jurisdic- district court had matter 22, 2012, petitioned On October Mahdi Mahdi, postconviction tion over the so postconviction evidentiary the court for an court could not reconsider whether it had hearing his the dis- challenge to renew Third, jurisdiction. argues he that if even jurisdiction, trict that alleging court’s law of the apply, the case doctrine were to establishing there was “new evidence that postconviction improperly the court held years petitioner was 15 old on the offense the that birth certificate did not fall under juvenile date and that the court therefore exception the “new of evidence” to the law jurisdiction had his exclusive of case.” the case doctrine. Specifically, alleged Mahdi that he had certificate, proved found his birth which respect argument to Mahdi’s With that that Farah born “Khalid Arase was postconviction court erred when de- Sainab Said Osman District Malindi termined that the in- birth certificate was 25,1994.”6 Hospital on August admissible, our review for an abuse of Although postconviction grant- court Brown, discretion. State v. request ed evidentiary Mahdi’s for an 716, 720 postconviction hearing, it birth cer- refused admit the court concluded that birth certificate tificate into evidence because Mahdi had was not relevant because Mahdi did proper not established a foundation for it.7 establish that the document at issue was certificate, Without the birth the court actually Mahdi’s birth certificate. While there concluded that was no evidence to the postconviction court couched its evi- support petition court de- Mahdi’s and the dentiary relevance, of ruling in terms nied it. filed a Mahdi motion this ruling focus the court’s relates to court stay appeal to vacate direct his evidentiary requirement foundation. and to consolidate it with an from appeal Specifically, the court held that the birth postconviction court’s We order. certificate was not admissible because granted that request. Mahdi had not established that the docu- ment offered was Mahdi’s birth certificate.
I. finding A that in question We turn first to that “the matter Mahdi’s contention the postconviction proponent court what its claims” is denying erred in a condition petition postconviction precedent for Mah- admissibility relief. of evidence 901(a). di arguments support advances three R. Minnesota. Minn. Evid. First, his argument that the court erred. Foundation can be established in either he argues postconviction evidence, ways: through court two as extrinsic During age-determination Mahdi’s initial found that the birth certificate could have hearing, DNA evidence was introduced con- original age-determi- been introduced at the Osman, firming previ- whom had hearing diligence” nation if a "lack not for ously grandmother, believed to be his part family. on the of Mahdi and his Because really his mother. ruling postconviction we affirm the court's certificate, excluded the birth we need ground excluding 7. As an alternative ground. not address this alternative certificate, postconviction birth *10 (Rule by Minn. R. Evid. 901 she was unable to read or write. contemplated More- over, 901); the court made a by finding specific finding that the evidence is or Minn. R. Mahdi’s mother was “not a “self-authenticating” under credible wit- Evid. 902). (Rule Because, ness.” regard be- With to Mahdi’s earlier use as discussed Arrasi, of the name Khalid Farah low, adequate not establish Mahdi did certificate, found that the name on the birth certifi- foundation for the birth cate spelled differently was and there were court did not abuse its dis- postconviction “fingerprints, footprints no or other bio- that the birth cretion when determined metrics” to tie the birth certificate Mah- inadmissible. certificate was
di. A. On appeal, challenges post- Mahdi conviction court’s conclusion that he failed authenticity of Under Rule present any credible tying evidence him proffered may evidence be established to the Specifically, birth certificate. Mah- evidence, through including extrinsic di argues “ample that there was evidence “[t]estimony that a matter is what it [Mahdi],” that the birth certificate was for 901(b)(1). claimed to be.” Minn. R. Evid. including the evidence that Mahdi told To establish that the birth certificate of protection child workers as early as 2005 by fered Mahdi was in fact his birth certifi that his name was not Mahdi Ali. areWe cate, presented testimony by Mahdi persuaded. not mother, who testified that when Mahdi born, he was named Khalid Farah postconviction We review a Arase. She also testified that she was credibility court’s determinations under present when Mahdi’s birth certificate was clearly erroneous standard. See out, in plastic filled that it was laminated State, Tscheu v. N.W.2d received it soon after from the when she credibility In order for a authorities, issuing recog and that she erroneous, clearly determination to be we proffered nized the birth certificate as the must “be left with the definite and firm given hospi birth certificate she was that a has conviction mistake been made.” , following tal Mahdi’s birth. Mahdi also State v. Evans testimony by relied on earlier a social (Minn.2008) (citation omitted) (internal pro worker that in Mahdi told child omitted). quotations marks This standard tection workers that his name was “high creates a threshold.” State v. reportedly Mahdi Ali. Mahdi used a num (Minn. Williams, during ber of different names his interac 2014). workers, protection
tions with child includ record, on Based our review the ing “Khalid Arrasi.” conclude that Mahdi has not demonstrated The court determined postconviction postconviction finding that the court’s any credible present failed present any he failed to credible evidence him tying proffered evidence to the birth him tying proffered birth certificate explained clearly certificate. The court that the was erroneous. There is reason- testimony support able evidence to the court’s find- Mahdi’s mother was “contra- physical contra- physical ing, including dicted condition of the evidence mother, paper testimony document which indicates it must dicting the of Mahdi’s long being have been laminated after is- of the name on the spelling different cеrtificate, questioned any finger- her and the lack of sued.” court also abil- birth tying ity identify prints, footprints, the birth certificate when or other biometrics *11 the birth certificate to Mahdi. Conse- The birth by certificate offered quently, postconviction we hold that signature Mahdi bore a seal and a purport court did not abuse its discretion when it ing to be an attestation or by execution determined that the birth certificate was Registrar.9 Malindi District And defense not admissible under Rule 901. counsel unsigned submitted an letter from Kenyan Embassy D.C., in Washington,
B. stating birth certificate “bears the The fact that Mahdi failed to establish Registrar Seal of the of Births and Deaths sufficient foundation for the birth certifi- of the Republic Kenya.” The letter did cate under dispositive Rule 901 is not identify of not position the name or of the issue, however, the foundation person because embassy at the who reviewed the Rule 902 allows a court to admit “self- birth certificate. authenticating” any documents without ex- The postconviction court concluded that authenticity. trinsic evidence of Domestic satisfy Mahdi failed to the final certifica- public documents are self-authenticating if requirement 902(3)(A), tion of Rule be- they bear one of the enumerated official cause the letter was unsigned and did not signature purporting seals and a to be an identify the or position name of the person attestation or execution. Minn. R. Evid. who reviewed the birth certificate.10 The 902(1). Foreign public documents are not court also noted that the seal on the back self-authenticating they satisfy unless of the birth certificate certify did not requirement,
additional specifically “a final signature on the document was made certification genuineness as to the of the by someone authorized to execute the doc- signature position and official ... of the ument. executing or attesting person.”8 Minn. R. 902(3). 902(3) Evid. Rule provides a list of appeal, On Mahdi argues that post- persons may who make a final certification conviction court abused its discretion when of genuineness, including diplomаtic “a or it determined that the birth certificate was consular official of the foreign country as- not self-certifying. specifically, More he signed or 902(3) accredited to the United States.” contends that he satisfied Rule by Id. “presenting] information to the court of a 902(3)(B) provides 8. Rule an alternative days cate. Several postconviction after the satisfying means of the final certification re- hearing, copy origi- counsel received a of the quirement, provision but that is not at issue in letter, nal certification with a business card this case. by for Muhambe paper clip. attached De- fense counsel submitted the business card to noted, postconviction 9. As the court "the seal postconviction days court a few after the on the back” of the birth certificate did "not hearing. postconviction court did not certify that copy the document is a true or address, what, expressly any, if effect the signature that the on the document was made analysis. business card had on its We need by someone authorized to do so.” not decide whether the attachment of Mu- days 10. Several postconviction after the evi- copy hambe’s business card to a of the un- dentiary hearing, attempted defense counsel signed certification letter was sufficient to es- supplement the record with an affidavit. In position tablish name person or of the who affidavit, defense counsel’s she averred the reviewed the birth purposes certificate for following Embassy facts. staff told her that because, 902(3), event, Rule any the un- unsigned certification letter was drafted signed certification letter failed to attest to the by a man named Dennis Muhambe. Counsel "genuineness” signature and official wrote requesting to Muhambe confirmation of position Registrar. of the Malindi District position and his review of the birth certifi- by ingly, postconviction we hold that the that was issued Kenyan birth certificate Births and Deaths of Registrar denying petition. did not err Mahdi’s by a Kenya, specif- as certified Republic of II. Embassy official who reviewed Kenyan
ic Al- the document.” and authenticated turn to argument We next Mahdi’s to have counsel seems though defense the district court abused its discretion get embassy done her utmost allowing two different types opinion tes- *12 needed, the the information she provide timony relating to the surveillance videos. court’s determination supports record the First, argues Mahdi that the court erred to establish the name that Mahdi failed that, by permitting police testify to based who reviewed position person and of the videos, they on their review of some of the embassy. birth certificate at the the eliminated Abdisalan as one of the two Moreover, if had established even Mahdi entered the assailants who Seward Mar- who position person the name and of the ket, they and determined that Ahmed was certificate, birth the certifica- reviewed the Second, accomplice. the shooter’s he ar- satisfy require- fails to the tion letter still gues by allowing testimony the court erred 902(B) to Rule because it attests ments of experts digitally the forensic who clari- only of the seal of genuineness testify the surveillance to fied videos about and Deaths of the Re- Registrar of Births build, clothing, the similarities between Kenya, genuineness not the public tone, shoes of the people skin and of the Mal- signature position and instances, official videos. In both surveillance Registrar. indi District testimony contends the was inad- Mahdi help- missible because it failed to meet the sum, supports postcon- the record requirements ful-to-the-trier-of-fact that Mahdi viction court’s determinations 701) (Rule R. and 702 Minn. Evid. satisfy requirements of Rules failed to (Rule 702).12 902(8). disputed We consider the Consequently, post- 901 and testimony separately. court did not abuse its conviction district when it determined that discretion A. birth certificate was inadmissi- proffered certificate, police investigating were Mahdi When ble.11 Without the birth murders, they Market relied contention that he is Seward support has no for his heavily footage from a vari- relief. Accord- on surveillance postconviction entitlеd above, challenges testifying expert, testi- as an the witness' 11. As noted also postconviction court's determination that the mony opinion in the form of or inferences prevented doctrine it from law of the case opinions inferences which limited to those or reconsidering as to Mahdi’s its conclusion (a) perception rationally on the are based age, argues and that if the law of the case (b) helpful and to a clear under- the witness applies, doctrine the birth certificate is "new testimony standing or de- of the witness' operates exception evidence” that as an termination of a fact in issue.” Minn. R. these alter- law of the case doctrine. Because governs opinion Rule 702 testimo- Evid. 701. arguments depend on a determination native provides ny by expert witnesses. It sci- "[i]f admissible, that the birth certificate technical, entific, specialized knowl- or other postconviction we have affirmed the court’s edge to understand will assist the trier fact certificate, it is not neces- refusal to admit the issue, determine a fact in the evidence or to argu- sary for us to reach these alternative by knowledge, qualified expert as an witness ments. education, skill, may training, experience, or testify opinion or thereto in the form of governs opinion testimony by lay Rule Minn. R. Evid. 702. provides otherwise.” witnesses. It that the witness ”[i]f ety help build a A: At I gentle- businesses timeline that time when saw the day. for the robbers’ activities that man SuperAmerica, Police from I at .the lot, time, impound used video from the a Super- I believed that he was the America, business, transfer money person store, a hos- had entered the Market, pital, importantly, the Seward Market the Seward gone had what help happened. construct back of store to control the customers. trial, Before Mahdi filed a motion to Sergeant Kjos said police next elim- opinion testimony by exclude law enforce- Abdisalan, cousin, inated Ahmed’s ment as the officers “as identification of [the] shooter’s after accompliсe viewing video the defendant on surveillance video.” The from the impound SuperAmeri- lot and the granted district court Mahdi’s motion ca. part, ruling that State could not ask they currently
the officers if opin- had an Q: you eventually Did take Abdisalan *13 ion person as to whether the in the surveil- home? Nevertheless, lance Mahdi. videos was A: I did. the court that appro- concluded “with the Q: Why you did take him home? priate police foundation” the officers A: After the seeing video from both should to testify be allowed about the con- SuperAmerica the impound the they clusions during investigation drew the lot, I at that believed time that Ab- period watching after the surveillance vid- disalan was not one of the peo- two eo for purposes the limited of explaining ple either of peo- not the two —was (1) “why [Mahdi],” focused police on ple that entered had the Seward (2) “why investigation proceeded Market intention of rob- as it did.” To ensure the limited use of bing eventually them and lolling such testimony, the court indicated that it three men. give
would be “willing limiting instruc- objected, After defense counsel the district tion” to the jury “to draw its own conclu- following jury issued the instruction: sion person as to whether the in the video Court: of the jury, any Members state- tape is in fact the defendant.” by ment made the witness re- trial, Sergeant At Mahdi’s Kjos Ann tes- garding the state of mind of tified that police SuperAmer- after saw the other is to people disregard- be video, ica they identified the man in the addition, by you. ed In video as the accomplice: shooter’s Sergeant’s regard- conclusions Q: you opinion Did have an as to ing depicted who’s in various video, person whether put videos are to the investiga- then SuperAmerica that’s tion of this case into context. admitted, just been was involved in your You are to draw own con- Market shootings? Seward clusions based on all the evi- A: Yes. might dence who any on be in Q: opinion? What was that videotapes that are in evidence at this time. Objection, Honor, 701, Def: Your Q: Sergeant, your limit testimony to On appeal, argues that the you thought
what at you the time district allowing court erred this testi viewed video mony and what conclu- because it admissible under you sions only. drew then and then Rule 701 or that the district videos, “help police it would the time saw the argues, court’s assertion he they why police ap already focused on had identified jury understand Mahdi as a considering suspect gathered was not accurate “and pellant” probable sufficient State, investigation. cause to him magis- course of the arrest and obtain a however, argues Sergeant Kjos’s trate-approved tes search warrant.” Mahdi’s timony properly provide argument suggests admitted to that evidence is admis- investigation. Evi- sible to police investiga- context for the show context of an dentiary rulings only rest within the sound dis tion when it is evidence that first court, and will police suspect cretion of the district made the defendant evidentiary ruling may not reverse an absent a have been involved a crime. But clear abuse of discretion. State Medal- our cases do not draw such a fine distinc- (Minn. Mendoza, 910, 917 tion on how the information must have 2006). investigation. affected the notes, As the State the evidence from have made clear that evidence
We police was important context evidence in generally give jurors admissible to this considering case that Mahdi’s defense investigation. context for an State v. Gril was centered on the contention that he had ler, been misidentified and someone else shot Griller, appeal we considered the of a man the three men at the Seward Market. murdering convicted of someone and then began attorney opening Mahdi’s state- burying backyard the victim in his *14 by saying: ment “Misidentification. Minneapolis. northeast Id. at 738-39. We That’s what this case is about.” He simi- held that the district court did not abuse larly began closing by say- statement admitting testimony its discretion in about ing, “Misidentification. I That’s what told a letter sent to the Falls Police Sioux you case Monday, this would be about last Department investigation that started the and that’s what we’ve seen.” po- Without police or the content of interviews with being testify lice able why they to as to testimony neighbors. Id. at 743. The Abdisalan, possible ruled out alternate “provided jury the with the context neces perpetrator, jury might the have wondered investigation to the sary explain how why police investigate did not further Ab- began why against police Griller the why police disalan and decided to focus the Id.; excavating backyard.” were [Griller’s] investigation possible on Mahdi as the Czech, see also State N.W.2d in shooter the Seward Market. (Minn.1984) (affirming the admission investigation of evidence of an undercover Importantly, gave the court district of the defendant because the evidence limiting instruction to make sure the could show “the context of the conversa rely did on the evi jury improperly tion; is, why agents that the undercover jury dence. The court reminded the that defendant”). talking were with Sergeant’s regarding “the conclusions argues depicted put that the district court’s who’s in various videos are to context,” police testimony investigation rationale that the “would the of this case into jury the the help why police jury supposed understand fo- and that “draw [its] on “not based on all the evidence appellant,” cused consistent own conclusions might any videotapes with the the who in of the police facts” because received on be tip first citizen within hours of the shoot- this Jurors that are evidence at time.” ings presumed limiting that led them to Mahdi’s car in the are to follow instruc use of parking ramp. By respect proper Seward Towers West tions with evidence, and Mahdi has not provided any At a pretrial motion hearing, the district jurors reason to doubt that followed denied Mahdi’s motion to exclude the testimony instructions here. See State v. experts. Far of the forensic Noting dan, that some of the surveillance videos “were trial, digitally manipulated clarify We hold that the context of the details the tape,” district the court court did not abuse its discretion in said it was “necessary that digital evidence allowing Sergeаnt Kjos testify testify technicians once say what was done and how it partner she and her viewed the affects surveil videos, accuracy they image por- lance eliminated Abdisalan as trayed.” The court said one it was “appropri- of the two assailants who entered the ate they testify point and be able to market and determined that Ahmed was out build, similarities between clothing, the accomplice at the Seward Market who tone, shoes,” skin and that the experts gun.13 did not have a were “also obligation under the testify that those similarities are not caused B. digital process.” clarification trial, Before Mahdi also filed a mo court also noted that if some differences in tion testimony to exclude the of two foren tapes are “explainable by factors other experts sic who Target Corpo worked for persons being [than] items or different police ration when investigating were items,” the experts should be “allowed to Target murders. has an accredited crime explain why.” laboratory. The lab was created to inves example, For the court said: tigate company’s problems orga ratio, lighting, aspect [T]he whatever crime, nized retail but it also pro does goes opinion into their why about bono work for local law enforcement. might appear differently. general- That Minneapolis police detectives asked the lab ly is not within province of the nor- to help investigate the Seward Market juror mal as to how lighting and other shootings by examining surveillance foot *15 factors on a video tape could affect the age. argued Mahdi that the testimony at appearance of items from one video tape issue was not admissible expert as testimo to the next. ny under Rule 702 because it was not placed court also “helpful” Target limits on the jury. to the Specifically, Mahdi experts’ forensic argued testimony: jury that “the is in good as position to look at the photographs and may These witnesses ... testify that draw conclusions from them аs Target they Fo are in fact the same clothing or the rensics, the testimony [and so] of the Tar persons. same They point can out simi- get Forensic witnesses would be of little They larities. say why can they are jury assistance to the and should not be similar and whether it was by caused admitted.” their digital manipulation of the evi- alternative, 13. In argues the Mahdi that the purpose offered for some other not for testimony must be excluded by because it is not bidden the rules of evidence.” Black's lay (10th admissible expert opinion ed.2014); as either or Dictionary Law see also testimony Wermerskirchen, under Rules 701 and 702. Mahdi’s State v. argument (Minn. 1993). ignoring fails because he is the rule Sergeant Kjos's Even if testi “multiple admissibility," mony actually which holds that was inadmissible under Rule "although piece decide, of evidence is inadmissible 701 or an issue we need not under one rule purpose given for the properly in offer purpose was for the admissible it, ing it is nevertheless providing admissible if relevant investigation. context the Ali in may point person out dif- the identified as Mahdi the They not. dence or why they appear to “could explain Dahabshiil video not be eliminated ferences They may opin- not offer being different. as the same as the individual hold- be in fact the same cloth- they ion that are in the ing weapon the Seward Market.” in the person’s depicted ing Schoering length [sic] or same also testified at about tapes. video various variations in video quality light- how could variations in the ing images cause Jimmy Schoering Target expert forensic jury that the saw. 15, 2011. He told September testified on enhancements jury “performed the that he Target expert The second forensic extracted” from images [he] testify was Jacob Steinhour. Steinhour lot, impound Super- from the the videos compare pictures asked to of pants America, cashing Dahabshiil check fa- the police the Minneapolis recovered at He said he cility, and the Seward Market. apartment images Ali’s with the Mahdi in the Seward Mar- compared the shooter pants that wеre recorded in the various vid- people appearing the ket videos pointed surveillance videos. Steinhour out eos from the other three locations. pants details in the that were ap- various videos, parent the surveillance such as Schoering pointed out several similari- thighs. in the fabric on one of the identified as contrast person ties between the end, testified that he Steinhour photos Ali14 in various from the Mahdi not conclude the pants could whether and the Dahabshiil check impound lot matched. center, cashing including cuffs shoes, tone, the color of his his skin
jeans,
appeal,
argues
On
that the testi-
Schoering testi-
“general
and his
build.”
mony
Target analysts
of the
was inadmis-
as Mahdi
person
fied that
identified
under Rule 702. He does not chal-
sible
Ali in
lot video “could not be
impound
lenge
testimony
from
portion
indi-
being
eliminated as
the same as the
analysts
they
about how
extracted vid-
weapon
in the Seward
holding
vidual
clarify
technology
eo and used
some of
despite
But he also said that
Market.”
Rather,
images.
argues
he
person
later identified as
the fact that
improperly
district court
admitted “testi-
significant
Ali
“no
character-
Ahmed
had
mony comparing
gunman
specific
to a
general
other than
skin tone”
istics
compar-
in the other videos and
individual
in the Seward
common with the shooter
jeans
worn
ing
jeans
the cuffed
video,
not be
Market
Ahmed “also could
in the other videos.”
gunman and
being
same as the indi-
eliminated as
*16
provides
Rule 702
that
scien
weapon
“[i]f
with the
in the Seward
vidual
tific, technical,
specialized
or other
knowl
per-
Market.” He also testified that the
fact to
edge
will assist the trier of
under
later identified as Mahdi Ali
son
the evidence or to determine a fact
cashing
Dahabshiil check
stand
video from the
issue,
build,
qualified
expert
as an
general
a witness
center had “similar
similar
skill,
training or
shoes,
by knowledge,
experience,
cuffing
...
and the
on
skin tone
education, may testify thereto in the form
the Seward
jeans”
the
in common with
Expert testi
Schoering
opinion
testified that
of an
or otherwise.”
Market shooter.
Mahdi,
himself,
police,
identi-
Ahmed also identified
14.
In an interview with
lot,
impound
the
impound
in videos from the
from the
Abdisalan
fied himself in the video
money transfer
recording
SuperAmerica, the Dahabshiil
An
from that interview
lot.
audio
testified,
center, and the Seward Market.
played
jury. When he
was
for the
eos,
mony
“only
testimony
if
admissible
our
review
videos confirms that
help
evaluating
fact in
will
trier of
some of the
details required expertise
finer
evidence or
factual
resolving
issues.”. State
and were not within the
knowledge
Medal-Mendoza,
917 average juror.
example,
For
one
Target analysts
using
testified
that
angle
camera
distance
from the cam-
variety
Mahdi cites a
of federal cases
era,
possible
it is
to tell
suspect
that one
that affirmed the exclusion of similar testi
other,
taller than the
The district court
mony on the
basis that
would not be
sort
determined this
would
testimony
“helpful” to the jury and therefore was not
help the
jury, and
hold that the court
proper subject
expert opinion
testi
did not
its
reaching
abuse
discretion in
See,
mony.
e.g.,
States v. Dorsey,
United
that determination.15
(4th Cir.1995) (affirm
F.3d
812-15
ing a trial court’s decision to exclude the
III.
testimony of two
who
experts
going
were
We turn next to Mahdi’s contention that
say
the defendant was not the
the mandatory imposition of a sentence of
depicted
individual
in bank surveillance
life
possibility
without
of release
photographs because it would not be help
(LWOR) for
first-degree
premeditated
Brewer,
jury);
ful to the
United States v.
murder
Eighth
conviction violated the
(9th Cir.1986)
F.2d
(affirming
Amendment
U.S.
be-
Constitution
trial
court’s decision to exclude testimo
cause it
cruel
pun-
constitutes
and unusual
ny from an expert that the defendant was
argument
ishment. Mahdi’s
is based on
not
depicted
robber
surveillance
Alabama,
Miller v.
Supreme
which the
photographs). But these cases do not cat
that,
Court held
as applied
juveniles,
egorically hold that the evidence would not
sentencing schemes mandating
vio-
LWOR
actually help
only
the jury,
that the trial
late the Eighth
prohibition
Amendment’s
courts in these cases did not abuse their
—
on
punishment.
cruel and unusual
in concluding
discretion
that the evidence
-,
2455, 2460,
U.S.
132 S.Ct.
would not help
jury.
See Dorsey, 45
(2012).
L.Ed.2d 407
The Court
not
did
(“We
F.3d at 812
find that under an abuse
categorically prohibit LWOR sentences
standard,
of discretion
the district court
but
required
rather
imposing
before
err.”); Brewer,
did
253
609.185(a)(1) (2012)
§
car
judicial authority
judicial
der Minn.Stat.
to conduct
pro
mandatory
sentence under
ries a
LWOR
ceeding that is necessary
preserve
Minnesota’s “heinous crimes” statute.16 constitutionality
legislative
of a
sentencing
2(1) (2012).
609.106,
§
See Minn.Stat.
subd.
scheme, and therefore we should remand
Miller, the man
argues
that under
resentencing
district court for
fol
datory
of a
sentence
imposition
LWOR
lowing
hearing.
a Miller
Mahdi contends
punishment
constitutes cruel and unusual
requires us to
that Miller
declare the 2005
Eighth
in violation of the
Amendment to
(add
§
amendment to Minn.Stat.
609.106
Const,
the U.S. Constitution. See U.S.
ing premeditated murder
to the list of
The
amend. VIII.
State concedes that
offenses that
imposition
mandate the
of a
case,
mаndatory imposition
Mahdi’s
sentence)17 unconstitutional,
LWOR
Eighth
sentence violates the
LWOR
revive the most recent
legis
version
agree
Amendment under Miller. We
with
sentencing
lature’s
passes
scheme that
parties.
constitutional
muster
accordance with
Fedziuk v. Commissioner
Public Safety,
We have held that Miller is a new
(Minn.2005).
on direct review when
Miller
Whether
the remedy in this
Miller
applies
Teag
Mahdi’s case. See
ease is controlled
Chauvin or Fedziuk
Lane,
288, 300-10,
ue v.
489 U.S.
109 S.Ct.
presents a question of law that is informed
(1989).
1060,
N.W.2d or executive functions. Chau Jonason, vin, 730, State v. explained N.W.2d at 25-27. We (Minn.1980)). Third, that it was “practically necessary” a court has inherent for the judicial improvise district court to a authority engage jury in fact- activities finding mechanism because the new rule of necessary that are to the performance of criminal procedure in functions, Blakely announced judicial judiciary but “the is not left the district court without a constitu to resort to inherent authority doing when statutory tional impose mechanism to so ‘respect equally unique would not aggravated sentence Legislature that the authority of another branch of govern intended. Id. differently, at 25. Put M.D.T., ment.” State 831 N.W.2d district court could either “completely ig (Minn.2013) C.A., (quoting State v. nore the legislative departing scheme for (Minn.1981)). Keep from presumptive sentence,” guideline mind, ing principles these we consider or “it could do the least damage amount of whether Chauvin or Fedziuk controls the to the statutory by scheme retaining the remedy in this ease. departure mechanism while at the same Chauvin, charged the State the de complying time with Blakely by using a felony by fendant with theft swindle and sentencing jury.” Id. provided him with notice that it intended We said the right district court was to seek an enhanced sentence under Minn. choose the second option. We also ex- II.D.2b.(1). Chauvin, Sent. Guidelines plained that impaneling Blakely jury a N.W.2d at 22. After the defendant was uniquely judicial a function because it was charged, trial, but before his the U.S. Su procedural a matter. Id. emphasized We preme Blakely Court decided v. Washing that “Blakely did not ability remove the ton, 542 U.S. 124 S.Ct. judge sentence, to impose aggravated an (2004), L.Ed.2d 403 which rendered uncon only changed process by ag- which provisions stitutional the of the Minnesota gravated may imposed.” sentences be Id. Sentencing ju Guidelines that allowed for Finally, explained that the district dicial fact-finding aggravating sentenc infringed had not legislative on the Chauvin, ing factors. See 723 N.W.2d at function of creating sentencing guideline In an effort comply with the rule system because “there legisla- was no new announced in Blakely, the district court tion providing for the same or a different empaneled a Blakely jury after the jury procedure” and infringing from on a “[f]ar had guilty. found defendant Id. at 23. function, legislative the district court was Based on the Blakely jury’s findings of effectuating legislative policy of allow- fact, the district court imposed upward ing the opportunity to depart from the durational sentencing departure. Id. presumptive sentence where ‘substantial appeal, On defendant Chauvin compelling circumstances exist.’” Id. challenged the authority district-court’s (quoting at 27 Minn. Sent. Guidelines empanel Blakely jury. We II.D.) concluded Consequently, we held Chauvin the district permitted court was to that when a sentencing scheme set out empanel a sentencing jury because courts the Legislature has been ruled unconstitu- have judicial the inherent authority to en tional Legislature and the has remained gage in activities that necessary are it, silent on how to fix district courts have performance judicial functions and the power inherent adopt judicial proce- exercise of authority in the context bring dures can sentencing presented in Chauvin not infringe “did on” scheme compliance into new rule
255
explain
to
that when a statute is unconsti-
while
procedure
criminal
of constitutional
damage
tutional,
inoper-
“the least amount
it is “not a law and it is as
doing
Id. at 25.
statutory scheme.”
Id.
as if it had never been enacted.”
ative
Nevertheless,
“only
at 349.
the latest
Fedziuk,
Chauvin,
696 N.W.2d
Unlike
any previous
severed and
amendment
sentencing scheme
340,
did not involve
remains in
version found constitutional
full
a new rule of
comply
to
with
that failed
effect,”
In-
because an unconstitu-
force and
procedure.18
constitutional
criminal
stead,
ques-
law,
Fedziuk
involved two certified
“being
inoperative,
tional
void and
several amendments
relating
tions
in
repeal
any way
cannot
or
affect an
at
consent
law. 696 N.W.2d
implied
Id. We then revived the
existing one.”
in Fedziuk that the
imрlied
342. We held
the statute that was in effect
version of
2003,
law,
offended
as amended in
consent
immediately prior to the unconstitutional
right
procedural
constitutional
a driver’s
Id.
amendments.
re-
because the administrative
process
due
remedy
The
we sanctioned in
by the executive
procedures provided
view
Chauvin
a better
fit for the cir
provides
branch, “although prompt,
pro-
[did]
here than the reme
presented
cumstances
review.”
sufficiently meaningful
vide a
Chauvin,
Fedziuk,
in Fedziuk.19 As in
dy we
at 347. We went on
used
696 N.W.2d
Fedziuk,
implied
facially
held that the
consent law was
the dissent of Jus
18.
In addition to
pur
unconstitutional. See
cumstances homicide includ IV. ing participation the extent of his turn next argu We to Mahdi’s way peer conduct and the familial and ment that he should be resentenced be Miller, pressures may have affected him.” cause his entire sentence violates the — at -, U.S. S.Ct. at These Eighth Amendment to the U.S. Constitu factors, exclusive, while not establish a I, tion and Article Section 5 of the Minne starting point. useful sota argues Constitution. Mahdi that be addition, purpose
In the of a Miller cause his consecutive sentences are the hearing provide the sentencer an “practical LWOR, equivalent” the ag of opportunity any mitigating consider cir- gregate sentence is unconstitutional. cumstances that would demonstrate that a criminal Whether sentence violates the the of a imposition sentence LWOR is question constitution is a of law that we end, not To that the district appropriate. Gutierrez, review de novo. State v. should, upon court request (Minn.2003).22 counsel, evidentiary assistance of hold an A.
hearing juvenile may present at which the any evidence to establish the existence of argues although Mil mitigating circumstances. did imposition ler not address sentences, lengthy aggregate the district
If on remand the district
here
court
court’s decision to impose consecutive life
concludes that
the circumstances estab-
equivalent
imposing
sentences was the
hearing
lished at Mahdi’s Miller
do not
release,
sentence that “from the outset denied
possibility
warrant a
the court
reimpose
possibility
being
should
a sentence of
of ever
released
[him]
LWOR
If,
Therefore,
prison.”23
argues,
accordance with Minn.Stat.
609.106.
from
he
hand,
on the other
practical equiva-
court concludes that
“entire sentence was the
argues
by failing
22. The State first
that Mahdi forfeited
Miller claim
to raise it in the district
argument by
raising
this
We
below.
court
the Miller rule
because
was announced
disagree. Ordinarily, we will not decide is-
sentencing hearing.
after Mahdi’s
sues that were not raised before the district
court, even when criminal defendants raise
23. Because we
vacated Mahdi’s
have
LWOR
ap-
constitutional claims for the first time on
resentencing,
sentence and remanded for
we
Busse,
peal. See State v.
644 N.W.2d
only
constitutionality
consider
of the con-
Osborne,
(Minn.2002). But
in State v.
we
imposition
secutive
of the two sentences man-
concluded that the
did
defendant
not forfeit
dating
possibility
life with the
of release after
Blakely
by failing
consideration of his
claim
years
first-degree felony
for the
murders
raise it in the district court because the Blake-
Mohammed,
Mohamed Warfa and Anwar
un-
ly
sentencing
rule was announced after his
609.185(a)(3),
§§
der Minn.Stat.
subd.
hearing.
4(b).
Osborne,
Like the defendant
conclude
that Mahdi did not forfeit consideration of his
exercised its discretion to sentence
type
of sentence that Miller
lent of
sentences;
life
after
Eighth
Mahdi to consecutive
Amendment[.]”
held violated
however,
State,
that Miller
miti
considering
aggravating
contends
all the
imposition
specific
of discre-
to his
gating
does not address
circumstances
sentences,
imposition
and that the
of consec
tionary consecutive
crimes. Because
mandatory,
opportunity
court had an
to consid- utive sentences was not
but
district
impos-
before
reliance on
mitigating
discretionary,
er
circumstances
Mahdi’s
agree with the
ing
misplaced.
Mahdi’s sentence. We
Miller is
We therefore hold
of con
imposition
State.
that the district court’s
first-degree
sentences for the two
secutive
argument
recognize
Mahdi’s
fails to
felony murder
is not cruel and
convictions
mandatory imposition
of an LWOR
punishment under the U.S. Con
unusual
sentence was the crucial factor Miller.
stitution.
—Miller,
at -,
the sentencer from account of these argues impo Mahdi also that Removing central considerations.” Id. sition of consecutive life sentences violates youth prohibits from the balance a sen I, Article Section 5 of the Minnesota Con tencing authority assessing “from whether disagree. stitution. We imprisonment the law’s harshest term of proportionately punishes juvenile offend The Minnesota Constitution at -, er.” Id. at 2466. The 132 S.Ct. provision contains a that is almost identical foreclose specifically Court did not Amendment, Eighth prohibits but it punishment juveniles, of LWOR for but “cruel or unusual” instead of punishments required that such sentences not be im punishments. “cruel and unusual” Com posed taking youth without the defendants’ I, (emphasis Minn. pare Const. art. at -, into consideration. Id. 132 S.Ct. (em added), with U.S. Const. amend. VIII (“Although at 2469 we do not foreclose a added). phasis have held that this We ability judgment sentencer’s to make that wording “not trivial” difference is be “ cases, it require homicide to take Supreme cause the ‘United States Court different, into account how children are that, upheld punishments although has ” against and how those differences counsel cruel, they may be are unusual.’ State not irrevocably sentencing them to a lifetime (Minn.2014) Vang, v. 847 N.W.2d prison.”). Mitchell, (quoting State v. 577 N.W.2d (Minn.1998)). impose determining decision to concurrent or 488 whether particular consecutive sentences falls within the dis is cruel or unusual sentence Constitution, cretion of the court. Minn.Stat. courts district under Minnesota Warren, (2012); § 609.15 separately see State should examine whether (Minn.1999) it unusual. (“Sentencing sentence is cruel and whether is Juarez, is within the discretion of the trial court State v. 837 N.W.2d discretion.”); absent an challenging abuse of Minn. Someone sen 2.F.2.a.(1)(ii) “heavy Sent. (providing Guidelines tence as cruel or unusual bears permissible showing that is for district court burden ... of that our culture judges nigh to sentence those convicted of uni emphatically and laws and well first-degree versally reject murder to consecutive the sentence.” State v. sen tences). (Minn. case, Chambers, In Mahdi’s the district 589 N.W.2d omitted) (internal 1999) (citation consecutive life quotation imposition of sentences did omitted). I, violate Article Section of the marks Minnesota Constitution. a sentence
To determine whether cruel, gravi compare a court should is C. severity of the ty of the offense to argues next the dis Mahdi Mitchell, at 489 See sentence. impos trict court abused its discretion in analysis of the step this (noting First, ing consecutive sentences. he ar the case- step with the first consistent gues recognize that the court failed Eighth for the Amend by-case analysis “juveniles sentencing differ from adults for ment). showing that has no made deserving and are less purposes consecutive sentences imposition punishments they harshest because have considering grav disproportionate culpability heightened diminished jury found that he ity of the offenses Second, prospects argues for reform.” he Therefore, Mahdi has not committed. that the district court abused its discretion under that the sentence is “cruel” shown imposed because it consecutive sentences I, 5 of the Minnesota Con Article Section express purpose preventing with the stitution. being pris Mahdi from ever released from whether a sentence To determine hand, State, argues on. The on the other unusual, compare the a court should discretionary imposition that the court’s with sentences re defendant’s sentence life sentences for Mahdi’s con consecutive other offenders convicted of the ceived multiple victions for murders is not exces *23 offenses both inside and same or similar sive, noting that Mahdi’s case is one of Juarez, of Minnesota. See 837 outside or rare crimes for which those “uncommon Here, too, Mahdi’s claim N.W.2d at 482. punishment should be re the most severe affirmed con repeatedly fails. have We served.” for for the juveniles secutive life sentences A district court’s decision that Mahdi committed. kinds of crimes Flowers, 120, sentences is reviewed See, impose consecutive 788 e.g., State v. N.W.2d v. (Minn.2010) for an abuse of discretion. State (affirming 122 two consecutive (Minn. 703, 725 715 McLaughlin, N.W.2d 16-year-old life for a who mur sentences 2007). will interfere with a district trying to rob a We people dered two while 440, house); Warren, sentencing only discretion when the 592 N.W.2d court’s State v. (Minn.1999) to the offense disproportionate a sentence is (holding. 452 that district criminality unfairly exaggerates in or it imposing abused its discretion court conduct. State v. Far on a who of the defendant’s concurrent sentences defendant dan, 303, victims); 322 In State v. 773 N.W.2d shot and killed three (Minn.1994) (af victims, consecutive Ouk, multiple cases with 186 516 N.W.2d ever, rarely, dispropor if for a 15- sentences are firming consecutive sentences McLaughlin, In for people two at tionate to the offense. year-old who shot and killed Brom, imposition of two example, upheld v. 463 range); close State N.W.2d (Minn.1990) life sentences for a student (affirming consecutive consecutive 765 killed two of his classmates 16-year-old who mur who shot and life sentences for a ax). 715-16. he 15. 725 N.W.2d at with an when was parents siblings dered his and McLaughlin argued that district showing no that such Mahdi has also made by imposing consecu abused its discretion sentences are “unusual” in other states. failed to Therefore, because the court that the district court’s tive sentences we hold 260 weight
give sufficient several factors V. culpability, including his related to his also se pro Mahdi raises series of youth. rejecting Id. at 715. chal arguments supplemental brief. We “youth” lenge, we noted factor each of in turn. consider them upheld numerous cases which we had argues re first that he comparable sentencing, those in especially ceived ineffective assistance of counsel. volving “particularly callous murders.” Id. Specifically, argues attorney he that his Warren, 716; at 592 at see also N.W.2d requested have a change should of venue 452 a district (holding that court abused its that he should have introduced evi imposing discretion in concurrent sen dence of an perpetrator. alternative murders); tences on a defendant three they claims fail These because raise mat Ouk, (affirming at 186 consec N.W.2d strategy, ters of trial which we will 15-year-old utive sentences for a who shot State, review. Leake v. 737 N.W.2d people range); and killed two at close (Minn.2007). Moreover, even if these Brom, (affirming at con matters two did not constitute trial strate 16-year-old secutive life sentences for a gy, Mahdi has not shown that his counsel’s who parents siblings murdered his on these objec decision two matters was ax). with an Lahue, State tively unreasonable. (Minn.1998) (citing Strick Like McLaughlin, the defendants in Washington, 668, 687, land v. 466 U.S. Ouk, Brom, Warren, Mahdi is convict- (1984)) (noting S.Ct. L.Ed.2d ed of “particularly callous murders.” See prevail on an ineffective assistance McLaughlin, 725 N.W.2d at 716. de- claim, appellant of counsel must show acknowledges fense because that trial representation counsel’s “fell be age-determination hearing, the district objective low an standard of reasonable court “had an abundance of information ness, and that a ex probability reasonable appellant’s unique personal about circum- ists that the outcome would have been stances,” urged and the defense also errors”). different but for counsel’s sentencing court at to consider Mahdi’s *24 separately argues Mahdi that his coun- youthful Nonetheless, characteristics. sel ineffective he was because did not chal- court recognized singular brutality lenge prosecutor’s finding claims of with which Mahdi carried out the crimes on pants blood Mahdi’s and did not main- that made clear Mahdi never should during tain Mahdi’s innoсence the opening Warren, prison. be released from See 592 closing statements. These fail claims (noting N.W.2d at 452 that the district for lack of factual support. court should ag- have considered “severe Based on our careful review of the rec- gravating determining factors” when ord, we hold that Mahdi has not shown whether the sentence should be consecu- that his counsel was ineffective.24 concurrent). tive or We hold district court did abuse its discretion argues Mahdi also that his Miranda by imposing consecutive sentences on knowing, waiver was not voluntary and Mahdi. intelligent. Arizona, See Miranda v. 384 argues prosecutor arguments Mahdi they simply also ar- these because are misconduct, experts committed gumentative any that the DNA assertions without or factual mistakes, Coe, made legal support. and that the district court v. See State 290 Minn. 537, 538, 421, judge (1971). was "unfair.” We do not consider 188 422 N.W.2d
261 briefly.” juror then U.S. S.Ct. told the investi- L.Ed.2d that, gator Judge “she didn’t tell the (1966). about But we will not decide issues that approaching and speaking woman court, before the district were not raised her because didn’t feel impor- [she] it was when criminal defendants raise con- even Judge.” to tell the tant ap- stitutional claims for the first time on Busse, claim See State v. Mahdi’s fails for several peal. reasons. First, the affidavit is not part the dis- argue Mahdi did not be- trict court record and so we do not consid- low that his Miranda waiver insuffi- was er it. See State v. Manley, 664 N.W.2d cient, and therefore the record has not (Minn.2003). Second, even if the sufficiently developed been for the court to record, affidavit part it does not State, consider this claim. See Johnson juror any establish that committed (Minn.2004) (“One misconduct. Her statements to the dis- encourage of this rule is to purpose trict court and the statements attributed a factual development of basis claims at to her in the affidavit are not inconsistent. level.”). the district court clearly The court was any concerned about
improper
juror
contact and asked the
alleges
Mahdi next
that because
anybody present
whether
for the trial had
crime,
juvenile
he was a
at the time of the
specifically
talked to her. The court
asked
juror
spectators
about
hearing
he was entitled to a
court-
certification
trial,
room and witnesses in the
and about
as
being
before
tried
an adult. Because
whether someone spoke to her about the
preponder
the district court found
if
approached
case. Even
a Somali woman
ance of the evidence that Mahdi was 16 at
juror
and asked where the bathroom
murders,
the time of the
he is not entitled
was,
affidavit,
as
in
asserted
there is
hearing.
to a certification
Minn.Stat.
any
no evidence that this woman was in
260B.007,
6(b), 260B.101,
§§
subd.
subd.
way associated with the trial or related to
(2012). Accordingly, this claim is without
Therefore,
a victim.
Mahdi’s claim fails.
merit.
part,
part,
Affirmed in
reversed
remanded.
Finally,
juror
alleges
Specifically,
committed misconduct.
Mah
PAGE,
(concurring
part,
Justice
dis-
alleges
juror
di
that the
committed miscon
senting
part).
by telling
family
duct
member of one of
The court remands Mahdi’s case for a
the victims where
courthouse rest
with the
hearing
comply
requirements
*25
trial,
during
rooms were
the
and then not
—
Alabama,
U.S. -,
Miller v.
the
telling
district court about the incident
(2012),
S.Ct.
when she was asked. Mahdi hired a
judge
jury
or a
to consider whether a life
juror
investigator
spoke
vate
who
with the
possibility
sentence with the
of release af
affidavit,
after the trial.
In an
the investi
years
appropriate
ter 30
is a more
sen
juror
the
him
gator says that
told
she was
mandatory
tence than the
life sentence
“approaching
jurors’
the
door to the court
(LWÓR),
without the
of release
possibility
wearing
room when an older woman
a
serving.
he
The case law on
which
is now
hijab
appearing
to be of Somali de
justify
which the court relies to
its decision
view,
approached
my
appropriate
scent
her
is
In
the
spoke
inapposite.
with her
remedy
sever
heinous-crimes stat
court for a hearing to determine whether
juveniles
ute as it relates to
and revive the
imprisonment
LWOR or life
pos
constitutionally
sibility
most recent
valid versions
years
of release after 30
is the
244.05,
4(b),
§§
of Minn.Stat.
appropriate
subd.
sentence. The court contends
(2012)
609.106,
2(1),
subd.
and 609.185
for
that State v.
supports
Chauvin
its conclu
juvenile
only,
offenders
and then remand
sion that we
power
have the
to fashion
imposition
the district court for
of a life
such a sentencing hearing.
I.
2(1)
(2012) (“The
subd.
The court is correct that Mahdi’s
person
LWOR shall sentence a
[LWOR] [if]
Miller,
sentence is unconstitutional under
person is
first-degree
convicted of
[pre
U.S. at -,
-
added)).
preference
that
heinous-crimes statute
is unconstitu-
This statement assumes
nous crimes.”
utilizing
statutory-revival
tional and
only policy consider-
Legislature’s
that the
remedy
applied
we
in Fedziuk v. Commis-
for
mandating LWOR sentences
ation in
Safety,
remedy
sioner
Public
not the
of
impose
was its desire to
all offenders
Chauvin,
applied
appropriate
is
ve-
on those con-
sentence available
harshest
remedy
hicle to
Mahdi’s unconstitutional
mur-
first-degree premeditated
victed
sentence.
prehearing
gree premeditated
revocation.
Id. at 342. We
murder
to serve an
agreed and
the appropriate
considered
LWOR sentence was ineffective and “as
remedy for the constitutional violation.
inoperative as if it had never been enact
Id. at 849. The district court had revived
ed” with respect to them. See Act of June
the 1980
the law remedy
version of
2, 2005,
2,
136,
3-5,
§§
ch.
art.
2005 Minn.
process
due
Id. The
problem.
1980 ver-
(codified
901,
Laws
922
at Minn.Stat.
sion of the
for no
provided
pre-hearing
law
244.05,
5, 609.106,
2(1)
§§
subd.
subd.
license
Id.
revocation.
The Commissioner
—
(2012)); Miller,
at -,
U.S.
132 S.Ct.
argued that the district court should have
2460; Fedziuk,
at
265
statutory
(reviving previous
of
revival is that we
at 1132
doctrine
version of a
duly
revert to a solution that was
simply
sentencing statute
only
to hold that
the
itself..., ”).
by
legislature
the
adopted
juvenile
sentence available for a
convicted
Similarly, the court would not have to
of
murder is
imprisonment
life
with
capital
speculate
Legislature’s pol
about what the
the possibility of release after
years).
might be if it
re
icy preferences
simply
Therefore, applying
practically
Fedziuk is
constitutionally
vived the most recent
valid workable,
doctrinally required.4
version of the heinous-crimes statute. See
By remanding
hearing
for a
giving
(“[T]he
statutory
id.
doctrine of
revival
option
the district court the
of imposing a
...
type
‘legislating
of
from
avoid[s]
imprisonment
sentence of life
pos
with the
required
the bench’ that would be
if we
sibility
years,
of release after 30
the court
essentially
the existing
were
rewrite
abandons our
longstanding practice of
original language
statute with
which
strictly adhering to the limits imposed by
policy
feel
better meet the
might
goals of
statutory
recently
text. The court
reaf
legislature.”).
the current
firmed
statutory
our strict adherence to
argues
The court
“[b]ecause
Axelberg
limitations
its decision in
2005 amendment
to the heinous-crimes
Safety,
Commissioner
Public
statute,
Minn.Stat.
is not uncon
case,
face,
stitutional on its
a Fedziuk solution
Axelberg drove under the influence of al
broadly
sweeps too
and undermines the
cohol in order to escape
bodily
serious
legislative policy expressed in section
injury at the hands
her
abusive hus
Practically speaking,
609.106.”
it is hard
Id. at 207. The
band.
Commissioner of
imposing
to see how
a sentence under the
Safety
Axelberg’s
Public
revoked
driver’s
previous version of the statute is “unwork
Axelberg sought judicial
license.
Id.
re
able,”
when,
particularly
under the court’s
At
implied
hearing,
view. Id.
consent
remedy,
own
the same sentence remains a
Axelberg attempted to assert the affirma
Moreover,
above,
possibility.
as noted
tive defense of necessity, which allows an
facially
heinous-crimes statute is
unconsti
liability
individual
escape
wrongful
category
juve
tutional as to the entire
—
act if the person had to do the act to avoid
Miller,
nile offenders. See
U.S. at
-,
overwhelming
instant and
harm.
Id. at
Nothing
possibility in senting part). remedy. doing, the appropriate so court, the Legislature, not the has “fix[ed] agree many points I with of the made in sentenc- punishment” limits of available dissent, Page’s separate- but write Justice Mahdi, ing Legisla- in contravention of the my with Part ly explain disagreement Shattuck, 704 authority.6 ture’s See opinion. Legislature III of the court’s 148; at see also Commonwealth v. N.W.2d unambiguous has in clear and stated 259, Brown, 466 Mass. 1 N.E.3d 264- sentence a person terms: “The court shall (2013) of (stating province 66 the “[i]t imprisonment possibility to life without define crimes and set Legislature first-degree the release” for a conviction reject- penalties in the first instance” murder. Minn.Stat. premeditated (2012). 609.106, § at rem- The entire ing approach the subd. Commonwealth’s mandatory sentencing agrees court the LWOR edying the unconstitutional modify the Nothing prevents Legislature from fix- court's decision to unconstitution- the juveniles ing punishment sentencing place, limits for the al scheme now in rather today way the same that the court does or reviving recent constitutional than the most Legislature’s manner. The failure law, some other any removes incentive for version statute, however, to fix the unconstitutional statutory Legislature to amend the scheme authority give the to act on does not requirements. complies with Miller’s so that it Moreover, Legislature’s behalf. Legislature exercising “judicial power”). sentence limited to prescribed juveniles respect with presumes “judicial pow unconstitutional The court that the Alabama, like Ali under Miller v. authority pro er” includes the establish - -, 2455, 2460, U.S. S.Ct. within proposition cedures the courts —a (2012),1 disagree L.Ed.2d but we about Chauvin, support that finds in State v. remedy. the proper (Minn.2006). Still, Chauvin most, provides, only partial support at judiciary It is well established that preferred remedy. Even court’s if the statutes; does not write nor do amend power” “judicial authority includes to cre See, them, no matter circumstances. hearing ate an ad-hoc procedure comply e.g., Axelberg Safety, Comm’r Pub. Miller, certainly give with it does not (Minn.2014); 206, 213 848 N.W.2d Dukow power courts to amend heinous- Servs., Sec. itz v. Hannon 841 N.W.2d statute,2 crimes (Minn.2014); see Minn.Stat. 151-54 In re Kar Estate of 2, to replace “may” subd. “shall” so ger, 253 Minn. reads, (1958). now Instead, may “the court sentence authority our is limit person imprisonment to life pos without “judicial power.” ed to the exercise of release,” or, III; sibility art. as court also has *31 Minn. Const. Minn. Const. art. VI, 1; Comm’rs, done, provide v. to Cnty. Sanborn Rice list of substantive fac (9 Gil.) 273, (1864); 9 Minn. 278 see tors for district courts to consider in also deter M.D.T., 276, State 831 mining appropriate v. N.W.2d 284 sentence.3 (Minn.2013) (Stras, J., concurring) Amending is, (stating always statutes and has judicial been, that power Legislature’s job, branch is particularly agree I says 1. court’s that Ali is conclusion court correct when it that Chauvin did not his forfeit constitutional claim under provides authority proposition for the that a correctly Miller. on The relies Osborne power court has the in certain circumstances conclusion, reaching in its I am but con- procedural to make a decision about which description cerned the court’s that Osborne judge jury factfinder—the or the make a —will may incomplete. key be to understand- particular finding, comparison court's but the ing intervening change is that Osborne in support short when falls it uses Chauvin its law had excused the failure to defendant’s remedy simply chosen in Chauvin this case. assert what otherwise been would have a fu- did not involve a situation which we were objection in tile the district See court. State v. required change Legislature’s prescribed Osborne, 436, (Minn.2006) 715 N.W.2d 442 for an sentence offense so that the statute (noting "consistently rejected we any that had pass could constitutional muster. In conclud- Blakely-type claim” and could that we not otherwise, ing apples the court confuses and continue, "expect defendants to formalistical- oranges. ly, objections motions or make based on arguments rejected repeatedly we have that as opinion 3.Nowhere court’s does it actu merit”). being legal without Osborne does say ally what its amended heinous-crimes broadly the failure excuse of defendants to says. applying statute The court cannot be object happens change there whenever to be a the current statute because it mandates the in the law. imposition of a sentence of LWOR on Ali. See Lakes, 627, City v. Sawh Lino 823 N.W.2d remedy 2. The court’s conclusion that the (Minn.2012) (stating 637-38 that the remedy Chauvin is use of similar in this case word apples-and-oranges comparison. duty "shall” in a statute "indicates a makes an apple mandatory, optional orange An like an when that is not one that is sounds it is or Instead, discretionary”). sweet-tasting grows described as that have to be deal fruit ing hypothetical on a tree has with a seeds. And while it is true statute the court’s and, making, Page points these are shared of both own as characteristics Justice out fruits, dissent, apple the fact remains impossible that an is not an is to know wheth orange, and this case is hypothetical not Chauvin. The er court’s statute creates a
269 offenses defining it involves criminal when Minnesota, See establishing Respondent, criminal sentences. STATE of Osterloh, 578,
State v. (Minn.1978) (“Determination of what con a criminal offense and the duct constitutes Dylan KELLEY, Appellant. Micheal imposed to be ... punishment ought judicial peculiarly legislative not a No. A12-0993. (quoting function.” State ex rel. Ahern v. Supreme Court of Minnesota. 243, 141 15, Young, 273 Minn. N.W.2d Moilen, (1966))); State v. 140 Minn. Oct. (“It (1918) 112, 115, N.W. Legislature province the exclusive crime, acts ...
declare what constitute a impose appropriate the same and
prohibit thereof”). a violation
penalties for “judicial
Squarely scope within the however, is the to sever an
power,” power provision and enforce
unconstitutional remaining portions
those of the statute do not violate the United or States
Minnesota Constitutions. See State v.
Barker, (Minn.2005); N.W.2d Shattuck,
State v.
(Minn.2005); see also State v. Melchert- *32 (Minn.2014)
Dinkel, determining
(setting guidelines forth permissible
when it is to sever the uncon statute). portions
stitutional of a That is requires
what Minnesota Constitution phrased
us to do here. Whether terms or statutory revival severance remedy
unconstitutional provisions,
the same: we must declare the heinous- applied
crimes as statute unconstitutional Ali and remand the case to the district impose
court with instructions to sen possibility
tence of life with the
of release.
problem
Blakely
re
constitutional
under
v. Wash
ment
to the United States Constitution
ington,
quires
by jury,
542 U.S.
124 S.Ct.
those facts to be found
301-04,
(2004).
judge.
statutory
If
maxi
at