State v. Olson

date, maturity would not motion purchaser partial summary the judg- Vossen’s ment. prom- have been so because the able to do

issory note was not the record. Reversed. type of exactly That is cloud on title prevent intended to legislature (and enacting pre- when 541.03 its section statutes). contrast, interpret-

decessor In do any person the statute as we allows

inspecting public records determine viability

without doubt the of an old mort- Snedeker, gage. Miller v. 257 Minn. Cf. Minnesota, Respondent, STATE of 215 n. 222 n. 4 101 N.W.2d

(1960) (“Minnesota Ex- Standards Title aminations, 25, provides: No. ‘An examin- OLSON, Appellant. Leonard Arthur may disregard mortgage er an unsatisfied No. C3-99-1558. record, years elapsed when 15 have 541.03.”). § maturity,’ referring since its Appeals Court of of Minnesota. 2,May upon, The district relied fact that argues, and Parker this action parties

is between original to the mort note,

gage and who all promissory

access to and notice of the maturity actual

date stated on note. Under these

circumstances, said, the district court unjust

would be to allow Vossen to take

advantage of the statute limitations.

But purpose pre of the statute is to

vent on requiring clouds title that the

enforceability mortgage of a be ascertain

able from the itself. mortgage Actual no

tice is thus legally irrelevant: the statute

requires put mortgagee world including constructive notice

mortgage necessary itself the information longevity. evaluate its Driessen- Cf. Steckman,

Rieke v. 409 N.W.2d

(Minn.App.1987) section 541.03 (applying enforceability mortgage

to bar between that,

original parties). Parker failed to do requires

and the statute limi thus period

tation run from date of the

mortgage.

DECISION plain language

Because the of section enforceability

541.03 bars the this mort-

gage, the district court erred in that a mistrial should be

and now decided giving appellant as method declared continuance.

Appellant argues that he, se, in finding acting pro erred to the district court’s impliedly consented Appellant argues of a mistrial. declaration never waived his to the defense of he jeopardy. Appellant argues also his first rendered ineffective of counsel. That issue is moot assistance appellant’s first was dis- charged long he went trial. before We ap- jeopardy protects conclude pellant having go through from a second trial. We reverse.

FACTS 12, 1996, appellant On December Leon- charged Arthur by ard Olson was com- filed plaint County in Isanti District second-degree Court with criminal sexual Strauss, Associates, Jerry Strauss & gross-misdemeanor conduct and criminal Minneapolis, appellant. The fifth-degree. sexual conduct in the complaint of alleged evening that on Hatch, General, Attorney Mike Cather- 10, 1996, December Olson molested six- General, Keane, Attorney ine M. Assistant N.P. year by placing old his arm around Paul, Edblad, County R. Jeffrey Isanti St. genital her and touching her area. Attorney, Cambridge, for respondent. 18, appearance At his first on December RANDALL, by and decided Considered 1996, represented by attorney Olson was AMUNDSON, Presiding Judge, Judge, Following a Gerald Paulson. number HUSPENI,* Judge. set pre-trial proceedings, matter was 4, for trial on 1997. At August the state’s OPINION request, Sep- the trial was continued until tember and the matter was then RANDALL, Judge 3, for trial on November The set 1997. appeal This is an from an order again eventually matter was continued Appellant argues relief. 5,1998. January set for trial on retrial that double barred his By after the court a mistrial letter December district declared dated trial, in his first In that the district Paulson the district court that case. informed him. appellant’s discharged January court substitute coun- had On denied Olson motion denial without appeared sel’s continuance. The Olson counsel and forcing recently of that motion had the that he fired The effect stated Paulson. public After appellant proceed pro appointed se at trial. the district defender, Fritz, attached, represent recon- the district court Arden Olson. its denial of continuance After Fritz chance to sidered earlier and Olson * VI, § Ap- judge Retired of the Court of Minn. Const. Art. Minnesota peals, serving by appointment pursuant speak, ord, Fritz informed the court that Olson the district court denied Strauss’s mo public representation. declined defender tion for a continuance. Strauss then de Fritz then that it inappropriate represent stated clined to Olson because he was public totally unprepared for the repre- defender’s office to for an immediate trial. a finding sent Olson absent Olson was then given the chance to be eligible defender services. The heard. He stated that Paulson advised stated that Olson did not him continued, that the longer the case himself, him, want represent but told better was for the defense. Not know- [you] discharged private “since counsel better, Olson took Paulson at his word. represented by and declined to be the The court concluded commenting, “I Public primary, Defender’s office as think delaying people really you leaves with representing your- trial, timely State to a I would be appointed self.” The court then Fritz as doing wrong thing. So I’m not going standby counsel and continued the matter to do it.” Then the trial started. After a day procure to the next so Olson could recess, attempted 15-minute to con- file from Paulson. duct voir dire with the assistance prosecutor. impaneled was then day, appeared, The next accompa- and sworn. by attorney nied Jerry Strauss. Strauss appeared argue a motion for a continu- On the morning January the dis- ance and agreed represent Olson if the trict court convened the jury with the in- motion was granted. argued a Strauss tent of beginning the taking of evidence. continuance, 30-day minimum given the presence Outside the jury, the court complexity and seriousness of the case. briefly procedural recited the history of He stated that he was confident Olson did the case and noted that Olson was “invol- fire delay Paulson as a tactic. He untarily representing himself’ and that Ol- further stated that in light of the fee Olson affirmatively son never stated that he was able to representation, secure for his represent wanted to himself. The court Olson was serious defending about acknowledged it was forcing rep- Olson to ease. himself, resent stating, “the circumstances are that I’ve basically ordered out [Olson] The district court stated that it did not to trial after discharged Lawyer he like grant continuances where defen that he had for a year period.” one When lawyers dants fired their on the eve of by asked the court if competent he was trial. It previous noted that in the two represent himself, Olson stated that he apparent months an trend developing was not. repeated was his contention where defendants would fire their attor that he previous did not want the continu- neys on the eve of trial so they could ances and that he was simply following a obtain continuance. The district court questioned Paulson’s advice. Olson how perceived as a ploy “by people who himself, Fritz, any he or attorney, other don’t want go to trial.” The court noted could adequately present a defense without that it was concerned about calendaring being granted a continuance and time to issues and stated that “any disadvantage prepare. that is suffering doing.” [Olson] is his own continued, The court stating that it “must Fritz put objected on the record that he management adhere to standards appoint public the court’s decision to grant don’t they’re continuances unless ab represent defender’s officer to Olson or act solutely necessary. showing standby There is no as counsel. He noted that Olson of necessity.” responded, Strauss stating completed public applica- never a defender that “to take statute, [a] trial courtroom tion manage form and that schedule, ment before rights represent constitutional defender’s office cannot a defen- n * * is grievous err the rec [sic].” On dant unless the individual meets the indi- sentenced, judgment and the of conviction He set forth statute. gency standards “strictly 21- incompe- stayed Olson received a stated that he was entered. also had no represent imprisonment because he and was tent” to month term of completely file and time to review the placed years. to 25 probation up facts of case. He unfamiliar with the 5, 1998, On Olson filed a sec- November standby as to withdraw permission asked arguing ond of double appeal, issue counsel. March this court jeopardy. On motion denied Fritz’s The district court as appeal untimely. On dismissed its adjourned to reconsider decision April 30, petition for Olson filed a proceed pro se and to compelling Olson to relief, postconviction alleging that his continuance. reconsider against violated double had been later, hour district Approximately an he had received ineffective assis- The 30-day continuance. granted court hearing, the Following tance of counsel. “This is not an elec- acknowledged, court peti- postconviction court denied Olson’s oneself, represent imposi- this is an tion to 30, 1999. fol- August appeal tion on This * * The self-representation tion of lowed. any conviction concerned that “bad obtained be reversed ISSUES made,” limiting a would be district law appel- 1. the claims Whether raised ability its trial calendar. manage petition are lant’s relief prosecutor jeop- that double stated procedurally barred. because the ardy was now an issue attached Whether impaneled been and sworn. He quick- appellant. a retrial of barred court for mistrial. ly moved agreed declared mistrial. The court appellant 3. ineffec- Whether received court attributed the mistrial to Olson’s The tive of counsel in his first trial. assistance “dilatory and not to the state’s behavior” giv- Fritz conduct. Neither Olson nor was ANALYSIS object to opportunity prose- en the Appealability I. request mistrial. matter cutor’s for a The 2, March was set for a trial on 1998. new postconviction proceed Review of a ing is “whether trial, determining limited to Shortly before this moved case, support there is sufficient evidence to argu- district court to dismiss postconviction post- findings, at and a jeopardy had attached because trial, dis conviction court’s decision will not be previous which declared consent, by the his turbed an abuse discretion.” court without absent State, 515, principle jeopardy Hodgson 540 517 of double barred v. N.W.2d (Minn.1995) (citation omitted). hearing, After dis- retrial. a motion motion, ruling trict court denied Olson’s argues petition The state Olson’s “minimally prejudiced by a re- postconviction procedurally relief is appeal trial.” Olson an filed jeopar barred the issue double because court, seeking review of the district court’s dy appeal. was raised in direct Olson’s The appeal order motion. We disagree. dismissed this court because was judgment. taken from a final Generally, appeal where a direct taken, therein has been the matters raised 10, 1998, stipulated On March known, at all raised matters but not case to State v. Loth pursuant the state’s (Minn.1980). time, enbach, not be in a sub will considered 296 N.W.2d 854 The (a sequent postconviction relief judge) petition different found Ol 18, 1998, be “unless the claim is so novel that it can guilty. son On June Olson was

299 legal reasonably said that was not its basis States Constitutions barred a second trial available to counsel time the direct judicial misconduct forced the mis- appeal Roby was taken and decided.” trial and granted the mistrial was without (Minn.1995) State, 531 N.W.2d 484 his consent. omitted). situations, (quotation In limited An may individual put not be twice however, requires, if fairness so and if the in jeopardy for the same offense. U.S. petitioner deliberately did not and inexcus- Const, Const, V; I, amend. Minn. art. ably fail appeal, to raise the issue on direct § Generally, attaches once reviewing court will consider a claim impaneled is and sworn. State v. petition postconviction contained McDonald, 449, 452, 298 Minn. 215 N.W.2d relief, even if the claim was known at the (1974). prohibition 609 against “[T]he appeal time of direct legal may its basis protect is not to the indi reasonably have been available. Id. vidual against peril punish a second State, In Rairdon v. 557 N.W.2d ment, protect but to him against a second (Minn.1996), petitioner 318 filed a di (citations trial for the same offense.” Id. appeal, stipulated rect but then to its dis omitted). In cases where a mistrial has “ Id. at missal. 322. The court held that it declared, been jeop ‘the conclusion that would not general extend the rule that ardy has begins, attached rather than issues raised in or known at the time of ends, the inquiry as to whether- [the] Dou ” appeal direct may not be considered in a Jeopardy ble [Clause] bars retrial.’ later proceeding peti to a (Minn. State v. Long, 562 N.W.2d 296 merely appeal, tioner “who a direct files 1997) Somerville, (quoting Illinois v. 410 but whose claims do not receive actual 458, 467, U.S. 93 S.Ct. appellate review.” Id. The court noted its (1973)).1 L.Ed.2d 425 decision was based on its “commitment to rights convicted defendants’ to substantive of a mistrial is (citation omitted). review.” Id. committed to the discretion of the district adopt McDonald, To argument the state’s court. 298 Minn. at deny Olson of to at least one N.W.2d at 610. The district court is in the substantive review of his conviction. Al- position best to evaluate whether “for com though appeal, reasons, Olson did file a direct pelling ‘the ends of substantial presented issues were never reviewed or justice cannot be attained without discon ” addressed on the merits. The matter was tinuing Long, the trial.’ 562 N.W.2d at procedural dismissed on and not substan- States, 296 (quoting Gori v. United 367 tive grounds. present- Because the issues 1523, 1526, U.S. 81 S.Ct. 6 petition ed in Olson’s for (1961)). L.Ed.2d 901 The court’s discre actually relief were never in reviewed his tion should be exercised with caution and appeal, direct precluded he is not from to the public justice. serve ends of Id. raising petition them in a postconvic- for tion relief. If requests the defendant the mistrial, jeopardy double does not bar a Jeopardy II. Double second trial governmental unless miscon argues Olson that the provoked duct the request. mistrial State (Minn.1985). Fuller, 722, clauses of the Minnesota and United v. 374 N.W.2d 726 Long 1. The defendant in filed a federal habeas court to failed consider less drastic measures claim, corpus challenging the Minnesota Su- short of a mistrial. Id. at 761. The court preme Long Court’s decision. See v. Hum- objectively determined that when “evaluated (8th merits,” phrey, Cir.1999). 184 F.3d 758 and on the the district deci- Eighth Appeals Circuit application Court of reversed sion "was an unreasonable conviction, Long’s holding clearly Supreme that a mistrial prece- established Court manifestly necessary not because the district dent.” Id. 300 good conscience start a serious crim- attached the mistrial not

If has consent, spur of the defendant’s inal trial on the moment. declared without is the in the context of the test is “whether possibly a not layman, As Olson could by dictated mani- trial the declaration was import failing the to have understood public jus- the ends fest a object prosecutor’s request the to Gwara, Minn. v. 311 108- tice.” State likely mistrial. He assumed that he was (Minn.1976) (cita- 419 247 N.W.2d get better off with a mistrial so he could omitted). tions to an the time talk to the record shows that district court argues by fail The state implied to that this prosecutor the motion, object the state’s ing to to in the form of mistrial was a continuance impliedly to the mistrial. While consented help trial preparation. to Olson with Ol- that a defendant need not ex agree we absolutely had no idea that a district son mistrial, pressly consent to a and consent judge might court not be able to declare may implied totality be from the of the mistrial the sworn and after been circumstances, object failure to to a the the guarantee the state to a second alone, not, may standing constitute mistrial prosecution without his consent. White, consent. State N.W.2d (Minn. (Minn.App.1985), review denied noted, not chance As Olson did have the 20, 1985). simply a to be Aug. It is factor counsel, who, standby at to confer with Contrary to considered. Id. the state’s least, have informed him con- of the implication, given oppor was not sequences consenting to a Ol- mistrial. object tunity to the mistrial or confer given opportunity son never standby counsel on with this issue. make an decision to ob- informed whether Immediately prosecutor’s request after ject prosecutor’s request. stated, mistrial, the district court circumstances, effec- Under the Olson was “Well, I I agree that should declare tively meaningfully the chance denied to- * * * mistrial, and will do so. So a mistri challenge prosecutor’s request al is declared and it’s instance of mistrial. Olson, Defendant his conduct.” at this se, point appearing pro given may even The district have acted opportunity object. precipitously declaring He was not Hav mistrial. that, question, said no given opportunity to confer with stand there is and the reflects, court, attempt shows record counsel. The record no prosecutor appellant’s or the and in inter thoughtfully, best ests, previous had the appellant insure time or reconsidered decision deny opportunity appellant private counsel time to hire coun standby to confer Fritz, any is sel. understood that the conse the record devoid of The court Fritz, appellant’s standby quences inference that as continuance another counsel, had to impliedly ordering appellant even consented to the the effect of only represent pro se a pub mistrial. The record shows that himself serious reflection, charge. Upon lic and further the dis straightforwardly, defender Fritz decorum, trict was professional with stood his court understood that this trial pointed alleged impro likely and the from the and ground beginning out “hatched” appointment probably of his initial the there a record full of error. priety and was instance, formally certify appellant failure to ever as For the record shows that Olson prosecu with voir dire indigent by and entitled to a defender was assisted the prosecutor tor. It a taxpayers’ expense. Fritz consis is fundamental that pursuant tently pointed right, that he had not had the cannot fulfill a defendant’s out case, prepare to the Amend time to for the not in a U.S. Constitution’s Sixth was ment, of position appellant, to have “effective assistance represent and could to

301 definition, argument, At oral the that prosecutor, by argued The state counsel.”2 attorney. It is a defendant’s affirmatively cannot be somehow must have Olson worse, percep say which is the because, “Well, difficult to the mistrial consented instance, reality. how tion or For certainly knew there to be going was prosecutor effectively could a as possibly be, only Our response another trial.” can peremp in exercising a his sist defendant The fact “So what.” that was told part tory challenges, important the most only there to be going was another trial dire, at factor in of voir times an essential proa means that se defendant told If guilty of or not guilty? the verdict that sitting judge a there was to be going prosecutor, through pretrial his own back All another trial. Olson could at that do prospective panel, of the and ground check point was assume that there one would be jurors’ his of through observations de- far, judge said so. far That is when answering questions, meanors being less than told the implication serious themselves, decidedly is satis the answers of a mid-trial mistrial and exact- being told six or of the fied with seven members mean, ly being what consent would (would prosecutor he? jury, could consent, up told he make could his mind to he?) tell the he had should defendant that not, a after reasonable time to confer peremptory challenges better use his five attorney. with an None of that was done. because, jurors of as a on some those Thus, “knowing” Olson’s there was he prosecutor, sure wants them! a going to be second trial is near nowhere criticized, equivalent “assuming” of that he

The district court cannot be praised, right can an earlier waived constitutional not to be rethinking be proceed require a defendant to tried twice for the same offense. decision problem change of pro se. is that the In v. Washington, Arizona 434 U.S. mind, mind, likely good change of 515-16, 515 at 54 S.Ct. one in accord with the administration of (1978), L.Ed.2d United States Su- justice, impaneled, after the came preme held that Court the district started, jeop- after the trial was and after judge precipitously declaring act in did not ardy attached. mistrial where the seminal us. This is issue before To evincing possible a concern for the dou- to obtain give Olson continuance/mistrial jeopardy consequences ble of an errone- prepare substitute counsel and sec- gave he ous both counsel ruling, defense only carefully ond trial could come with a prosecutor opportunity full fully showing laid record that Olson under- positions explain propriety their on the implications stood the of a mistrial/continu- a mistrial. fully agreeing understood ance and added.) (Emphasis one, waiving possible he was defense at trial. We double the next framework, In this sensitive where do that record. not have trying do the defendant, se had to thing pro for a consequences The record shows a full to ad- given opportunity have been to a mistrial laid out agreeing were not mistrial, propriety especially dress the detail Olson. The record does not Olson, the fact that consent light Olson’s standby show that or without counsel, affirmative, be waiver of the defense of fully likely in- made an bet- formed, jeopardy. It would have been intelligent decision consent to court to have short explicit granted with the understand- ter for the a the mistrial that he could now be tried recess and have ordered Olson and again. Const, defense”). (entitling 2. amend. VI crimi- See U.S. to for his nal defendant "assistance of counsel 302 delay ment a would private in so at and the continuance

standby counsel to confer im- cause. fully would understand the least Olson Also, a mistrial. agreeing of plications may deny a The district court conference, standby private in that counsel discharges if a defendant continuance have informed Olson even purpose delay counsel for the of power grant court though the had the arbitrarily choosing to counsel substitute objection, he had the mistrial over his Fager of trial. v. beginning State object. right to strom, 295, 261, 299, 176 Minn. N.W.2d 286 that, under these circum- conclude We (1970). 264 This rule the need recognizes stances, impliedly Olson did not consent administration judicial and a sound object the by failing mistrial the speedy Id. One factor to be consid trial. request a mistrial. prosecutor’s ered is the district court’s denial whether prejudice of a continuance will the defen not

Because did consent to presentation preparation dant’s of his mistrial, prove the the must that a state Id. The of rear defense. inconvenience necessity” justified the “manifest mistrial. out ranging the court calendar “cannot 296 Long, (holding 562 at See N.W.2d weigh to counsel.” right defendant’s] [a manifest standard controls where (Minn. 774, In re T.D.F. 258 N.W.2d 775 declared con mistrial without defendant’s 1977) Price, sent). (citing City Minneapolis that a argues The state mistrial 435, 776, 429, 280 Minn. 159 780 N.W.2d manifestly necessary it al was (1968) (holding caused to inconvenience representation lowed Olson to obtain the “hardly justi court minor calendar is he desired and the time needed for counsel fies of a as the deprivation as basic prepare defense. counsel”)). right to highA degree necessity, Here, support the record does not the exist necessity, absolute must before a district belief en- that Olson was Id. In appropriate. reviewing mistrial is gaged delaying in trial tactics. When the the district court’s exercise discretion January was the case called manifestly whether the was already nearly year During one old. necessary, reviewing court considers time, matter had been continued adequately the district court whether ex three times. The first trial date was re- Id. amined less drastic measures. Where request at scheduled of the state. court, is best who situated to pre- matter was continued a time second intelligently, make such a decision deter sumably because Olson the first removed “the justice mines that ends of substantial judge. why It is unclear from the record discontinuing cannot be attained without trial was continued third time. The trial, may a mistrial ‘without declare only record contains from the notice consent, defendant’s and even over his ob ” office, court notifying administrator’s “may jection,’ the defendant be re parties that the trial continued had been consistently Fifth tried with the Amend January from November Gori, at ment.” 367 U.S. at S.Ct. continuances, Aside from three (citations omitted). any record is devoid evidence that contends, As the mistrial declared en- one-year period before trial Olson caused, large the district gaged employed in or tactics de- delaying by the part, grant court’s refusal to him a signed to avoid trial. continuance so he could secure new coun- The court so day sel. refused to do because it We also note that after in a engaging delaying granted one-day Olson was Olson a con- believed tactic to avoid trial. The court also he could his file from tinuance so obtain Paulson, manage- concerned about trial calendar retained the services attorney preparation, This demonstrates Ol al Strauss. we must reverse the convic- (citation cooperate to with de tion.” T.D.F. willingness son’s 258 N.W.2d at 775 omitted). finding with a fense and is consistent seeking prolong

that he case request Olson’s a short continuance unnecessarily. agreed repre Strauss before trial was a far less drastic measure permitted sent Olson if a short time to that would have obviated the need for a prepare and familiarize himself with the mistrial. The district court itself acknowl- This, coupled case. with the fact that edged that it equivalent did the forcing previ there is evidence that no Olson had pro Olson to appear proceed se and to with tactics, ously engaged delaying does not selection, his own which up ended support the district that court’s belief Ol with being Olson assisted prosecu- son in “avoiding was interested trial.” Cf. tor. Miller, State 488 N.W.2d 239-40 only canWe conclude that when the (Minn.1992) (holding defendant not enti properly pri- reconsidered its tled to continuance when he refused to or decision to force Olson trial without cooperate delay); Fag and contributed to attorney, an obligation then had the erstrom, 299-300, 176 286 Minn. at N.W.2d lay a detailed and complete showing record at 264 (affirming denial of continuance intelligently consented to the defendant, explanation, where without (as a legal getting method of trial). sought day new counsel on counsel) continuance to hire un- equivocal understanding that he was con- Further, under the unusual senting being tried second time. A case, posture of this there is a serious intelligent detailed and decision adequate prepare issue of time to a de appear does not in the record. se, proceeded fense. Whether Olson pro Fritz, by public or by private defender or regrettable It is that a charge that all counsel, at least a minimum reasonable abrupt consider serious ends on this note. constitutionally pro time is essential and However, prohibition the constitutional tected. “In defining constitutionally infirm against trying a defendant twice for the n * * representation, competent represen fundamental, same qua offense is a sine premised tation is on sufficient time to pro- non of American and Minnesota due T.D.F., record, prepare a defense.” 258 N.W.2d cess standards. the inter- On (citation omitted). justice at 775 In light require ests of that Olson’s convic- complexity ground of the case and the lack of time tion be reversed on the that his preparation right against constitutional any investigation, jeopar- do dy was violated. preferred Strauss stated that although he continuance, 90-day ready he could be III. Ineffective Assistance of Counsel days. for trial within 30 He was confident 30-day that at with a least continuance he Because we reverse Olson’s convictions facts, not, could familiarize himself with the jeopardy grounds, on double we need case, an investigation detail, conduct of the and in address his claim that he re- prepare adequate an defense for Olson. ceived ineffective assistance of counsel. However, Similarly, public complaints defender Fritz stated can we note didly “strictly against against to the court that he was counsel are an incompetent” try the case discharged long because he whom he before both his mistrial, completely longer unfamiliar with the facts. and even Loth- before the probably He commented that stipulation through enbach that he went prepared gets today. better to handle the case be here There is no issue us cause, least, very assistance of counsel for us to Olson knew ineffective attorneys facts. “When denial of a continuance de decide. The last record two Olson, prives adequate pri- defendant’s counsel of tri- Fritz and defender major- very little in the Strauss, actually There is profes- performed attorney vate I in II with which ity’s analysis Section competence. and with sionally But, from the I must dissent take issue. that Olson’s majority’s ultimate conclusion DECISION twice placed not to be constitutional raised, not re but Issues jeopardy in was violated. viewed, that is dismissed appeal in a direct subsequent petition in a may be considered length some majority discusses at pro defen A se relief. postconviction denying request in perils inherent consent to the impliedly not does dant when the seeker of a continuance he is a mistrial where request for state’s legal an accused without continuance is object or to opportunity given not discussion, that agree I counsel. A standby counsel. appointed consult with would, To trial court too. suppose I trial calendar concern over in the trial court acted the extent that necessarily consti management does continuance, re- denying haste in allowing a defen necessity tute manifest fully during the “leisure” afforded pented tried twice. dant to be impaneled. after the record, consistent with On very recognized The trial the federal and protections under it had likelihood that erred substantial constitutions, impermissible to it was state too) (and in seriously probably reversibly, through a go compel this defendant in go circum- insisting that Olson forth trial. second fragile, if not non-exis- providing stances Reversed. tent, trial court counsel. And the legal un- that a conviction obtained

concluded HUSPENI, Judge very likely circumstances would DORIS OHLSEN der such — part) in part, dissenting appeal in on (concurring be reversed and remanded court, prosecu- that would involve result present- agree I that because the issues tion, in trial. alike a new and defendant petition in ed Olson’s Scylla Charybdis, Steering between in actually reviewed relief were never declared a mistrial sua the trial court precluded from appeal, he is not direct sponte. raising them here. distinguished I can be believe this case attorney agree I that because also 184 F.3d 758 Long Humphrey, from raised the insufficien- whom Olson against (1999). re- Long, Eighth In Circuit prior to discharged claim was cy of counsel Supreme the Minnesota Court versed the Lothen- activity mistrial both the corpus, a writ of habeas determin- granted trial, issue for this court bach there is no ing that extent, address, any, if except to the that discharge Olson’s range of available and viable [g]iven the analysis of the in the may weighed be mistrial, the trial court alternatives to and, ultimately, request for a continuance the sort of simply was not faced with the consideration of the double high degree or the urgent circumstances issue. mani- contemplated by the necessity standard. Further, majority that fest agree I with the con- before us we cannot record Id. at 761. to the impliedly clude that consented A of the trial court’s discussion object to the trial review by failing must, pages of tran- (covering did several grant it. I as this case court’s decision its conclusion script) demonstrates the mistrial majority, conclude available was mistrial. .only alternative opposition over the of Olson. was declared A I in this valid one. review of find no abuse discretion case That conclusion is a post- and would affirm the decision of the the trial the record also demonstrates petition. conviction court Olson’s and deliberative consider- court’s careful having importance ation of the to Olson him trial charge against decided one trial importance providing fair the state and Olson. both

Case Details

Case Name: State v. Olson

Court Name: Court of Appeals of Minnesota

Date Published: May 2, 2000

Citation: 609 N.W.2d 293

Docket Number: C3-99-1558

Court Abbreviation: Minn. Ct. App.