*1 secretly together placing suspects tice may violate their conversations taping constitu- these rights under
suspects’ privacy de- statutory provisions.2 Without
tional issue, disingenuous seém ciding the it would investigatory prac- develop police to instant taping the covert
tices such as
case, depends upon the which success individuals, and then privacy expectations of are expectations claim that these
reasonable.
PAGE, specially). (concurring Justice by Chief join special concurrence BLATZ.
Justice Minnesota, Appellant,
STATE of POWELL, Respondent.
Kye Lamar C0-96-1700, C8-96-1699.
Nos. Minnesota. Act, state communica- the related federal and Privacy Communications Minn.Stat. ch. (1996) adopted police standard in defin- held in 626A ing to conversations tions statutes protected oral which are communications conversations are It that such cars. concludes taping. interception or An from unauthorized protected communications are "any is oral communica- oral communication person ordinary priv- would believe are exhibiting, expecta- by person tions uttered Significantly, the article ilеged. at 132. Id. subject tion that such communication only points out this issue affects not arres- interception justifying such under circumstances tees, unsuspecting private citizen seek- but "the 2510(2), expectation.” § Minn.Stat. U.S.C. refuge” simply ing shelter 626A.01, § subd. 4. police car. Id. at 133. seat of a closed back Indeed, issue Would on this even determination Sanborn, Jr., Joseph B. See M. Bast and Carol police officers have a affect whether themselves Tap- Any Sightseeing Surreptitious Not Just Tour: privacy squad protect cars to their Car, 32 Crim. L. Bull. 123 in a Patrol superiors. taping their them from secret applicability of discusses the This article Katz
A.H., minors, A.M., and all left a barbecue Minneapolis. A.H.’s house in Near the inter- Street, section of 13th Avenue 21st youths passed three intoxicated Native standing by American men a small concrete retaining wall next a sidewalk. As passed, youths thought that one of the “nigger,” youths men said decided Respondent “talk back” to men. hit the man, 64-year-old smallest James Cloud Mor- gan, fight erupted involving everyone. fought While D.F. and A.M. the other two men, Morgan A.H. hit Cloud in the face and multiple kicked him times Morgan, slight stomach. Cloud man 5 feet weighing inches tall and less than 150 pounds, fight did not back. police call, respondéd to a found Cloud
Morgan lying bleeding semiconscious and the sidewalk and administered first aid. arrived, paramedics When the Morgan Cloud transported Hennepin County Medical pronounced Center where he was dead with- in hours. The cause death was deter- injury mined to be force abdo- blunt resulting rupture men of his liver and extensive loss of from the injury. blood liver police identify were able to the sus- pects children, help with the three ages who the attack porch witnessed from a across the street. All three child witnesses identified as Cloud Mor- - gan’s photographic lineup assailant Freeman, Hennepin County Michael At- well as in court. Burdorf, torney, Jean E. Assistant couple incident, days after Attorney, Appellant. for dent police custody heard that the had in two Stuart, John M. Minnesota State Public attack, of his friends involved Defender, McCaughan, Ann Assistant State uncle, Jerry went to his for assis- Defender, Respondent. Public Jerry tance. called neighborhood Powell
organization and referred to attorney A. agreed provide Demetrius who legal representation respondent. Respon- dent police met at the station OPINION where turned himself in. Four STRINGER, Justice. days May 11, 1994, killing, after the Hen- The court of reversed the district nepin County petition filed a denying posteonviction court’s order relief charging respondent and his three accom- appeals. and the state Because plices murder, second-degree Minn.Stat. yiction court did not its discretion in abuse 609.19, § subd. The state filed denying respondent’s petition, we reverse. juve- motions for adult certification of all four 7,1994, niles, D.F., p.m., respon- On around 11:30 respondent’s hearing before . friends, Kye D.F., juveniles Powell A.H. pled and A.M. 7,May Respondent felony Respondent testified in second-degree riot. defense, years claiming just 1994 before the old June that he turned stоod hearing or trial. certification laughing street and that he was the first to away. run admitted that he psycho- juvenile court ordered *3 kicked one of the men but denied part of respondent as logical evaluation Morgan, claiming kicked or struck Cloud in- proceeding. After certification the adult stomped Morgan. D.F. kicked and on Cloud 1994, psy- the terviewing respondent in June 22, 1994, jury November On the returned a report concluding “[re- issued chiatrist accurately the able to describe verdict of and сourt spondent] was sentenced .the study was upon respondent the certification presumptive basis which to sentence of implications ordered, for potential 14,1994. and 150 months on December stand trial to be referenced to him were he Respondent contacted the Office of the intellectual assessment an adult.” The Public State Defender March IQ respondent scale had full revealed asking help appeal. Respondent for with his him in the border- placed score of wrote that had told him ease Clemons his. functioning. Re- range intellectual line automatically appealed would be 5%, IQ mean- spondent’s bottom age, any- not his but had age of other adolescents his that 95% thing yet and was concerned. Coincidental- him. His achievement test above score ly, appeal expired time to conviction reading, grade mathe- indicated 6th scores day. public on this same An assistant state abilities, grades matic, spelling and case, a took the mоtion for late defender juvenile grade his current level. The below filing respondent’s appeal granted by to adult court certified proceed- appeals, appeal the court of and the 24,1994, finding that he was August court on granted re- ed. The court juvenile in to treatment not amenable stay of spondent’s appeal motion for a public safety system and would not be trial and remand court juvenile sys- by retaining him in the served of ineffective proceedings viction issue Respondent appeal the adult tem. did of counsel. and later claimed that assistance certification order him that he “be Clemons had advised would proceedings were bifurcated Postconviction claimed better off in adult court.” Clemons assistance of counsel with the ineffective appeal from that the decision not resulted assigned to for the adult certification claim grand: respondent and his a discussion with judge "and the ineffective that an mother which he informed them during trial as- of сounsel claim months and most several judge. Neither signed to the trial court likely filed succeed. state testimony accepted affi- oral court heard second-degree charges against felony murder defense counsel respondent, trial davits from Hennepin District counsel, the as- appellate defense 26,1994. August respondent’s county sistant the .time of a Around November family trial, mem- respondent’s four of and conference, conveyed to pre-trial the state Powell, Dorothy grаnd- his mother bers —his for, respondent plead an offer Clemons Jerry Powell, his uncles mother Joanne manslaughter first-degree with a guilty to Powell and Frank Powell. reject- The offer was sentence 78 months. argued that Clemons’ During jury on November voir dire first, in three areas: tance was trial, the prior 14 or 15 but to the start of fully and failed inattentive Clemons was of a 64- conveyed a second state ease; respondent’s prepare investigate first-degree month sentence for him second, Clemons rejeсted. manslaughter. That offer was also third, failed, to com- Clemons rights; and in adult' court be- Respondent’s trial municate trial, At gan two on November claim, asserted the first As to child respondent’s accomplices and the three him sufficient- not talk with re- witnesses all testified that distracted, should trial, seemed Morgan ly before peatedly punched Cloud kicked fully investigated public have more his case. Clem- The stated that she did not defender neglect ons maintained that did not re- learn about offers until spоndent’s aggressive, case and thor- uncle, Jerry mentioned that he heard ough, competent representation. about one offer from a “woman from the court made factual find- prosecutor’s expressed office who had sur- investigator prior ings that Clemons hired an prise had down a turned admissibility challenged of evi- plea public Later offer.” defender dis- prevailed Rasmussen hearing, at a dence covered that two offers had been his motion to admit A.H.’s statement evi- rejeсted. Upon hearing two objection, vigorously over the dence state’s offers, family expressed shock. trial, and fully cross-examined witnesses at family All four maintain members *4 argued respondent’s jury. defense to never any plea heard about or offers before appeared that The court concluded Clemons during trial. prepared, competent diligent. Hennepin two assistant attor- issue, that The second Clemons failed to neys prosecuted respondent who in assert respondent rights, of his encom- they conveyed' plea their affidavits that passes respondent’s claims that Clemons did offer of 78 months to Clemons or he appeal not inform him that could the adult reject- November and the offer was pur- certification and that Clemons failed to They during also state that a recess in appeal sue the direct of his convictions. Re- process selection November or spondent stated that he “didn’t understand 15, they conveyed plea offer of 64 months happening during hearings what was all the at respon- Clemons the counsel table in attended and didn’t under- [he he] presence. dent’s prosecutors Both in state rights.” [his] stand Clemons asserted that they their com- Clemons “actively he communicated to reject- respondent, municate the who including every importance,” item of inform- ed it. ing respondent proceedings, about the rights legal appeal. and his timing dispute Clemons does not explained ap- not respondent chose content of the in his affidavit and peal the adult certification because Clemons he contends that he communicated the probably him advised that he would remain offers to Clemons asserts that custody appeal, pending process respondent was “adamant his assertion months, could several and most certifi- vietimf,] jump he did not on the that it are cations affirmed. The somebody was else” and therefore found that Clemons met with plead guilty. not Clemons claims that “[i]t dent, all communicated informa- [respondent’s] position was that the children respondent, respondent tion to did un- who going witnessed incident were derstand the and no issue had been say one, come in and that he wasn’t the regarding “alleged raised ‘im- any assured him that I didn’t see reason that * * * paired capacities,’ intellectual diminish- they say would come in anything differ- capacity understanding.” ed or lack of Addi- they ent than what had said in their state- tionally, the court found that was ment they felt confident that [h]e had mis- prejudiced by appeal Clemons’ failure to testify differently taken him and was file a able to late at trial.” public postconvietion defender’s office. court found Clem- ons communicated the 78-month issue, alleged The third failure to accepted, and the offer was not respondent, communicate the offers to that Clemons communicated the 64-month of respondent’s core ineffective assis- hearing offer in tance claim. asserted his affi- county attorneys and the offer not ac- davit that explained any Clemons “never cepted, and that all terms offer made the state —Clem- * * * and [respondent] prosecutors ons and the two never turned down consis- —were * any or during offers before tent in regarding [his] trial.” their sworn statements content, adequate given respondent’s timing, age, and communication intelli- fact, gence, severity findings post- offers. In its of the offense: respondent, in the conviction court found that year being old tried in [sic] adult change belief that the witnesses would their court, having charged been with commis- testimony accepted would not death, resulting sion of a violent crime guilty plea and that assertion hardly can be said to have an in- agreed that he could have to and the court concerning possible plea formed decision accepted plea1 would have sentence of 64 months Alford n “pure speculation.” relayed incarceration when the offer is in a fleeting communication for a few seconds court concluded that table.2 respondent failed to establish ineffective as rejected Id. at 18. The court of sistance of counsel under the United States' finding district court’s Court test Strickland v. Wash accepted any to show that he ington, 466 U.S. S.Ct. agreement finding and substituted its (1984) own L.Ed.2d 674 and our decision in Gates prejudiced by the inef- (Minn.1987), be “effectually fective assistance because was prove repre cause he failed to that Clemons’ *5 deprived right opt the for a shorter term “objective sentation fell below an standard of of incarcеration” —and that therefore Clem- reasonableness” and failed to that but show ons’ of fell below performance for Clemons’ deficient the result objective of standard reasonableness and proceeding would have been different. prejudiced by inef- the filed with the court fective assistance. Id. juvenile appeals challenging of and dis- determining Our review is limited to postconviction court of trict denials relief. whether there is sufficient evidence to sus appeals of aр- The court consolidated the posteonviction tain the findings. court’s peals, affirming the denial of postconviction court’s decision will not be as to the adult certification in relief disturbed absent an abuse of discretion. reversing postconvic- court but the denial of State, 515, Hodgson v. 517 tion relief district court. Powell v. (Minn.1995). (Minn.App.1997). 562 14 N.W.2d The court appeals of remanded for new trial in adult guarantees The Sixth Amendment court. Id. right charged a defendant with a crime the trial,
Although
appeals
right
the court of
listed Clem-
to a fair
and the
to effective assis
investigate respondent’s
integral component
ons’ failure to
case
tance of counsel is an
of
Strickland,
686,
keep
right.
in contact with
at
U.S.
Strickland,
assistance,
examples
In
of Clemons’ ineffective
S.Ct. at 2063-64.
the Su
notably
preme
purpose
it did not conclude that the
Court noted that the
by finding
viction court abused its
to counsel is to ensure a fair
discretion
Focusing
by considering
otherwise.
on Clemons’ communi-
tested
whether “counsel’s
offеrs,
plea
proper
cation of the
the court of
function
conduct so undermined
accepted
findings
court’s
that the trial
of the adversarial
just
having produced
of fact that the
cannot
offers were communicat-
be relied
ed,
686,
at 2064. Be
but held that Clemons’ assistance was
result.” Id. at
104 S.Ct.
variety
ways
effectively
ineffective because the communication was
cause of the
25,
accept
Alford,
1. An
allows a trial
olina
400 U.S.
91 S.Ct.
court
v.
Alford
guilty plea
though
even
the defendant maintains
L.Ed.2d 162
his innocence if the court examines the factual
through
basis of the
and concludes
a collo
2. Of
is that nowhere in the record is
concern
quy
long
with the defendant that
or in what
"there is evidence
there
reference
how
support
which would
verdict of
manner the
offer was communicated—the
voluntarily, knowingly,
appeals’
fleeting
that the
reference to "a
commu-
and un
court of
Goulette,
wholly
derstandingly entered." State
nication for a few seconds” is
unwarrant-
(Minn.1977);
N.W.2d
see North Car
claim,
client,
As to
third
Supreme Court em-
represent a
offers,
and a
wide deference
did not communicate
phasized the need for
repre-
legal
notably
respect
scant
the record is
with
presumption of effectiveness
strat-
might
be considered trial
or did
that could
conversations that
take
sentation
egy.
104 S.Ct. at
Re
Id.
place between
Clemons.
proof
for estab-
levels
Court set forth two
spondent
claims that
never knew
require
lishing
ineffective as
offer;
so
first
Clemons claims
first,
must show
reversal:
the defendant
respondent,
offer to
but it
communicated the
performance was so deficient
counsel’s
rejected
because
belief
rea-
against,
judged
“an
standard
change their testi
that the witnesses would
functioning as
was not
sonableness” counsel
testimony ap
mony. The
same conflict
Amend-
guaranteed
the Sixth
“counsel”
offer,
plies
to the
Clemons’
second
ment, Second,
must show
defendant
offer is
communication of
prejudiced the
performance
the deficient
in the affidavits of the two
corroborated
687-89, 104
at 2064-65.
Id.
S.Ct.
result.
signif
no particular
attach
prosecutors.4 We
counsel, car-
respondent,
not the defense
com
icance to
lack of witnesses to these
proof
ries the
burden
however,
negotiations
munications
Here,
tance of counsel.3
usually
private
on such matters
court
the same
posteonviction district
attorney-client privilege
normally
presided
respondent’s trial
judge who
over
constrain the court’s acсess to such conversa
opportunity to observe
and therefore had the
any event,
posteonviction
tions.
In
respondent and defense counsel
both
communicated
found that the offers were
respect
specific
to the
areas in’which
conclude that the court
not abuse its
we
claims
counsel was ineffective.
relying
discretion
claim that
Regarding respondent’s
first
*6
to
that the
involved
establish
pre-
was
and failed to
inattentive
in fact
were
communicated.
fully,
investigatе
posteonviction
pare and
as-
The dissent’s conclusion that counsel’s
prepared and
court found that Clemons was
be ineffective if no further
sistance would
competent,
conclude there was sub-
and we
of the second
offer occurred
discussion
support
finding:
to
this
stantial evidence
affi-
beyond the communication noted in the
investigator, challenged
Clemons hired an
Be-
ignores the context of the trial.
davits
evidence,
admissibility of
motions
inno-
of
insistence of his
cause
testimony,
wit-
to admit
cross-examined
cence,
change
belief that the witnesses would
nesses,
argued respondent’s
defense
their'testimony
rejection
of
jury.
offer,
could
first
have reasonable
Similarly,
contrary
discussion would
concluded that additional
claim that Clemons faded to
second
purpose.
have served no
rights,
his
conclude
of
we
Finally, we note
has
post-
that substantial evidence
supported
proof
of
under
failed to meet his burden
finding
conviction court’s
analysis
level
the Striсkland
second
of
and'
understand the
Clemons commu
—that
by
representa
prejudiced
was
deficient
nicated all
to him.
information
The
concluded
posteonviction
tion.
respondent through
The trial court observed
prejudice
no
arose because
question
no
out his trial and found
basis to
accepting
competence.
not amenable to
was
improperly
jury
process, a
offer was ten-
The court
erred
shift-
selection
second
of
ing the
to the defense counsеl: "Clemons
at counsel table. The
burden
dered Mr.
appropriate steps
he took
prison-commit
show that
offer which
for a
term
legal procedures
months,
inform Powell of the
and effects
approximately
was communicated
of
conviction court for discussed
determine whether Clemons respondent outside the hear- offer with prosecuting and others. inquiry not believe that such do recog-
depart longstanding court’s flexibility and discretion inher-
nition of the attorney representation. See client ent (Minn.
King v.
1997). disturbing is about this case is What do know —but what we do.
not what we
The trial court needs make did more than
findings that defense counsel that the state was
simply tell the upon plea guilty.
offering him 64 months took
If further between no discussion respondent other than documented, respondent be should by receiving
granted postconviction relief offer.
benefit of Minnesota, Respondent,
STATE of THOMPSON, Appellant.
Dallas
No. C8-97-272. of Minnesota.
Rehearing Denied June