Does Failure to Disclose DNA Test Results Constitute Manifest Injustice?

State vs. Bryson, filed June 24, 2008

On September 23, 2005, Appellant, Rafael Bryson, pleaded guilty to second-degree murder. Prior to pleading guilty, the prosecution notified the Appellant that the police had recovered a gun from the roof of a building that Appellant had run past when police were pursuing him; and that, according to forensic testing, the bullet casings found near the victim's body showed that the casings were fired by the gun retrieved on the rooftop; that the gun could not be eliminated as the gun that fired the three bullets removed from the victim's body; and that, according to forensic testing, gun-shot residue was found on the right sleeve of the shirt Appellant was allegedly wearing at the time of the shooting. After receiving this information, Appellant pleaded guilty.

In July 2005, State had requested and received a continuance to allow for forensic testing of additional evidence collected from under the victim's fingernails and Appellant's clothing. This information was apparently not received by the prosecutor's office prior to entry of Appellant's guilty plea.

In March 2006, Appellant filed notice of appeal. The appellate court stayed the proceedings and remanded the case to district court for postconviction proceedings. In district court, Appellant filed a postconviction motion for withdrawal of his guilty plea.

The day before the hearing was scheduled on Appellant's postconviction motion, the prosecution received reports from the Bureau of Criminal Apprehension detailing additional forensic test results. The reports indicated that the Appellant's DNA was not found under the victim's fingernails and that no blood was found on the stained shirt allegedly worn by Appellant. This report was dated August 17, 2005, more than a month before Appellant pleaded guilty.

The Court of Appeals has remanded this case to the postconviction court for determination of whether the State's failure to disclose these BCA reports constituted a manifest injustice, i.e. whether it prevented the Appellant from entering an accurate, voluntary and intelligent plea. Also at play is the prosecutor's obligation to disclose all exculpatory material within his "possession and control."

Stay tuned.

Another Wrong Place/Wrong Time Story

Here:

Last Dec. 29 Blake Shamar Officer, a 17-year-old African-American, was on his way home from work at a local sandwich shop when he stumbled onto a crime scene in South Minneapolis. A middle-aged Latino man had been shot nonfatally during a robbery in front of an apartment building at Pillsbury and 28th avenues south. As Blake happened by, he caught the attention of police officers who believed the tall teen-ager matched the victim’s physical description of the shooter. After officers questioned him, the innocent yet nervous teen-ager was arrested, charged with four felonies and placed on house arrest. In a kind of legal limbo, he waited several months before charges against him were finally dropped.

And if we needed more evidence refuting the accuracy of witness identifications:

The alleged shooter was African-American, dressed in all black, and somewhere between 5 feet 8 and 5 feet 10. Despite the fact that Blake was wearing a gold shirt and stands 6 feet 5, the victim twice positively identified Blake as the culprit.

Is a Kick to the Groin Reasonable?

The D.C. Circuit Court says no.

The relevant facts of the case:

Juan Johnson is a police officer whose off-duty act of kindness to a stranger in distress landed him in the middle of a drug bust in which he was repeatedly kicked in the groin by a police officer who mistook him for a criminal. Johnson claims he was a victim of police brutality and sues both the officer alleged to have kicked him and the District of Columbia.

The court reasoned that "a reasonable officer would not have repeatedly kicked the surrendering suspect in the groin." Wow. Really? This is one of those rare situations which does not involve a suspect's word versus the word of an officer. In this case it is the officer's word versus another officer's word. Where would this case be if it had been the suspect's word vs. officer's word? I imagine it would not have gotten this far. The officer would have said the suspect was fleeing and resisting and...case closed.

Don't Talk to Cops, Part 2

The cop side of the story. The defense attorney/law professor, of course, is right. Don't ever talk to cops.

Don't Talk to Cops, Part 1

Out-of-State Temporary Registration Sticker Justifies Stop

City of Grand Forks v. Mitchell, Filed January 17, 2008:

The Defendant, Clinton Mitchell, was stopped by two Grand Forks police officers after they observed the Defendant's vehicle travelling without a front or rear license plate, and with an 8 1/2 X 11 inch temporary registration sticker from the state of Montana on the rear window. The expiration date on the sticker was written in black marker.

After stopping the Defendant's vehicle, the officers approached the driver's side of the vehicle, and, surprisingly, noticed an odor of alcohol and bloodshot, watery eyes. After ordering the Defendant from the vehicle, the Defendant was Mirandized and subsequently failed an Intoxilyzer test. The Defendant was charged with driving under the influence, driving under suspension, and driving without liability insurance. The Defendant entered a conditional guilty plea and appealed the District Court's denial of his motion to suppress the evidence obtained during the traffice stop arguing an unconstitutional stop.

As is well settled, an investigative stop of a motor vehicle must be justified by some objective manifestation that the person is, or is about to be, engaged in criminal activity, and mere curiosity, suspicion, or vague hunches will not suffice. Salter v. ND Dept. of Transp., 505 N.W.2d 111, 114 (N.D. 1993). It is also recognized that an officer's subjective intentions or motivations in stopping a vehicle play no role in constitutional analysis if other objective factors justified the stop or intrusion. Whren v. U.S., 517 U.S. 806 (1996).

Addressing the Defendant's argument that the stop of his vehicle was not supported by reasonable, articulable suspicion of criminal activity, the N.D. Supreme Court held that this case was similar to a recent N.D. case in which an officer was justified in stopping a vehicle with a faded temporary registration sticker. The N.D. Supreme Court ultimately held that the 8 1/2 X 11 inch temporary registration sticker provided the officer with reasonable articulable suspicion that the driver was not complying with the motor vehicle registration laws of N.D. The Court went on to state that:

This suspicion did not arise just because Mitchell's registration was from another state. This suspicion arose because a reasonable officer who sees a vehicle without license plates and with an 8 ½ x 11 white sheet of paper in the rear window that the officer does not recognize as an authentic temporary registration certificate would have reasonable grounds to stop the driver and check if the driver has a valid temporary registration certificate in his possession in accordance with state law.

Finally, the Court concluded by stating that the officer was justified in stopping the Defendant's vehicle to investigate whether it had a valid or fictitious temporary registration sticker because the sticker did not resemble any type of temporary registration with which the officer was familiar.

Section 39-04-17 of the North Dakota Century Code provides that possession of a temporary registration certificate is prima facie evidence of compliance with the State's motor vehicle registration law. The statute makes no reference to out-of-state temporary registration stickers, nor does it define, or in any other way, limit the size of the sticker. Essentially, the N.D. Supreme Court upheld the stop of the Defendant's vehicle because the officer did not recognize the valid out-of-state temporary registration sticker. Should N.D. police officers be required to recognize the temporary registration stickers of the 49 other states? If not, is the sole fact that an officer does not recognize a valid out-of-state temporary registration sticker enough to justify an investigative detention?

Moral of the story: If you plan on driving in or through North Dakota with an out-of-state temporary registration sticker, make sure you send a copy to the law enforcement agencies of North Dakota, otherwise you may be subject to an investigative detention.

30 Minutes Insufficient Time to Vindicate Right to Counsel

State of Minnesota vs. Christopher Charles Tupper, filed December 31, 2007:

A Minneapolis police officer arrested the Defendant on suspicion of DWI after the Defendant was administered a preliminary breath test that indicated a blood alcohol content of .145.

At 2:45 a.m., before asking Defendant to submit to chemical testing, the officer gave Defendant a telephone and telephone books to assist him in contacting an attorney. During the next 30 minutes, Tupper made several unsuccessful attempts to contact and consult with an attorney. At 3:16 a.m., the officer told Tupper that he could make no more calls and that he would need to decide whether he would submit to chemical testing without the advice of counsel.

Unsure of how a decision to submit to testing would effect his CDL license, the Defendant requested 15 more minutes to contact an attorney. This request was refused by the officer. The Defendant refused to submit to testing.

Prior to trial, the Defendant moved to suppress his refusal on the grounds that his right to counsel was not vindicated. The district court judge held that the Defendant had been given a fair and reasonable opportunity to contact an attorney and denied the Defendant's motion.

The court of appeals reversed. The court examined the Minneapolis Police Department's policy of allowing only 30 minutes to contact an attorney. Concluding that time alone is not a determinative factor, the court held:

Here, the only rationale articulated by the officer for ending Tupper’s attempts to contact an attorney at 3:16 a.m. was a 30-minute limit imposed by Minneapolis Police Department policy, which applies regardless of the time of day that a driver is attempting to contact an attorney. This court has decided that “basing the ‘reasonable’ time criteri[on] on a specific number of elapsed minutes alone is improper.” Kuhn, 488 N.W.2d at 842 (emphasis added). Accordingly, we conclude that the officer’s decision to stop Tupper’s attempts to contact an attorney—based solely on the 30-minute policy—did not afford Tupper a reasonable time to contact and consult with an attorney. Consequently, Tupper’s limited right to counsel was not vindicated.