EN BANC CALENDAR

 

Before the Minnesota Supreme Court

 

November 2006

 

SUMMARY OF ISSUES

 

Summaries prepared by the Supreme Court Commissioner’s Office

 

 

Monday, October 30, 2006, 9:00 a.m.

Supreme Court Courtroom, State Capitol

 

            Nancy Becker and Michael Becker, individually and as parents and guardians for Nykkole E. Becker, f/k/a Nykkole E. Rossini, Appellants, Minnesota Department of Human Services, plaintiff intervenor, Appellant vs. Mayo Foundation, Respondent – Case No. A05-45:  Appellants Nancy and Michael Becker appeal from the jury’s verdict that respondent Mayo Foundation was negligent for failing to report suspected abuse of the daughter appellants later adopted, but that respondent’s negligence was not a direct cause of their daughter’s injuries.  At issue are:  (1) whether there is a civil cause of action under the Minnesota Child Abuse Reporting Act, Minn. Stat. § 626.556 (2004), for a physician’s negligent failure to report suspected child abuse; (2) whether the district court properly excluded evidence related to respondent’s failure to report suspected child abuse; and (3) whether a hospital that treats a child only as an outpatient owes a special duty to the child.  (Olmsted County)

 

            State of Minnesota, Respondent vs. Marvin Haynes, Jr., Appellant – Case No. A05-2444:  On appeal from his conviction of first-degree murder, appellant Marvin Haynes, Jr., presents the following issues for review:  (1) whether the district court properly allowed the jury to review during deliberations the audiotaped statement of a witness to police; (2) whether the prosecution engaged in misconduct warranting a new trial; and (3) whether appellant was denied a fair trial by the admission of evidence of appellant’s past contacts with the police.  (Hennepin County)

 

Tuesday, October 31, 2006, 9:00 a.m.

Supreme Court Courtroom, State Capitol

            State of Minnesota, Appellant vs. Rossco A. Ross, Respondent – Case No. A04-1715:  Respondent Rossco Ross was convicted by a jury of identity theft and two counts of theft by swindle.  The court of appeals reversed the conviction on grounds that the counts were improperly joined in one criminal complaint because they were not related in “time, place, and criminal objective.”  Appellant State of Minnesota presents the following issues for review:  (1) whether offenses can be “related” under Minnesota Rule of Criminal Procedure 17.03, subd. 3(1)(a), without satisfying the traditional “time, place, and criminal objective” analysis; and (2) whether joinder of the offenses under the traditional “time, place and criminal objective” test was harmless error in this case.  (Hennepin County)

 

            State of Minnesota, Respondent vs. Anthony John Palubicki, Appellant – Case No. A06-401:  Appellant Anthony John Palubicki was convicted of first-degree murder and two counts of first-degree felony murder in the death of L.O., and was separately sentenced on each count.  On appeal, this court affirmed the convictions but directed the district court to vacate two of the three convictions and sentences.  On remand, the district court vacated the sentences for felony murder but did not vacate any of the convictions.  Appellant was resentenced to a life sentence for the conviction of first-degree murder.  On appeal, appellant presents the following issues for review:  (1) whether the district court erred in vacating his sentences for felony murder but not the convictions; (2) whether the district court erred in ordering restitution to the victim’s next of kin for various expenses incurred during the investigation and while attending court proceedings in the case; and (3) whether the district court should have offset the restitution to be paid by appellant by any restitution paid to the same family members by a co-defendant.  (Hubbard County)

 

Wednesday, November 1, 2006, 9:00 a.m.

Supreme Court Courtroom, State Capitol

            In the Matter of the Petition of Joshua S. Collier, in Relation to Property Registered in Certificate of Title No. 1596547 for an Order Directing Entry of a New Certificate and Declaratory Relief – Case No. A05-1178:  M & I Bank FSB appeals from a decision by the court of appeals that its mortgage is junior to the interest of Joshua Collier in certain real property.  At issue is whether one who purchases, for less than its fair market value, an interest in Torrens property with actual notice and knowledge of a prior mortgage that is recorded in the office of the county recorder but not registered in the office of the county registrar of titles nevertheless purchases in “good faith and for a valuable consideration” because the mortgage is not enforceable against the property.  (Hennepin County)

 

            NONORAL:  Timothy Michael Erickson, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A06-1113:  On appeal from the denial of his petition for postconviction relief from his conviction of first-degree murder, appellant pro se Timothy Michael Erickson presents the following issues for review:  (1) whether appellant received effective assistance of counsel at trial and during his direct appeal; (2) whether the prosecutor committed misconduct; (3) whether the district court exhibited bias toward appellant during trial; and (4) whether the district court erred in not conducting a hearing on appellant’s petition for postconviction relief.  (Sherburne County)

 

Monday, November 6, 2006, 9:00 a.m.

Courtroom 300, Minnesota Judicial Center

            State of Minnesota, Respondent vs. Luke A. Otterstad, Appellant, Robert A. Rudnick, Appellant – Case Nos. A05-178, A05-179:  On appeal from their convictions of creating a public nuisance and violating the City of Anoka’s ban on signs in the public right-of-way, appellants Luke Otterstad and Robert Rudnick present the following issues for review:  (1) whether Minn. Stat. § 609.74(1) (2004) applies to peaceful acts of political protesters or is unconstitutionally vague; (2) whether prosecuting appellants for violating Minn. Stat. § 609.74(1) was an unconstitutional content-based restriction of appellants’ right to freedom of speech; and (3) whether the city’s sign ordinance applied to appellants’ conduct.  (Anoka County)

 

            NONORAL:  Michael C. Francis, petitioner, Appellant vs. State of Minnesota, Respondent – Case Nos. A05-190, A06-940:  On consolidated appeal from his conviction of first-degree murder and denial of his postconviction petition, appellant pro se Michael Francis presents the following issues for review:  (1) whether the prosecutor committed misconduct entitling appellant to a new trial; (2) whether the district court committed various evidentiary errors entitling appellant to a new trial; (3) whether appellant is entitled to a new trial because the district court erred in not instructing the jury on lesser-included offenses; (4) whether appellant is entitled to a new trial because he received ineffective assistance of counsel; and (5) whether the district court should have granted appellant an evidentiary hearing on his petition for postconviction relief.  (Hennepin County)

 

Tuesday, November 7, 2006, 9:00 a.m.

Courtroom 300, Minnesota Judicial Center

            State of Minnesota, Respondent vs. Jeffrey Scott Clemons, Appellant – Case No. A04-1949:  On appeal from his conviction of harassment and violating a restraining order, appellant Jeffrey Scott Clemons presents the following issues for review:  (1) whether the prosecutor’s failure to disclose police reports of other complaints made about appellant entitles appellant to a new trial; (2) whether the prosecutor’s failure to disclose the existence of other witnesses to the incidents for which appellant was charged entitles appellant to a new trial; and (3) whether the complainant’s statement that she and appellant had quarreled over “hot property” and “people coming over doing drugs” constituted improper references to appellant’s character.  (Ramsey County)

 

            Mahoney & Hagberg, a Professional Association, n/k/a Mahoney & Emerson, a Professional Association, and Mahoney & Emerson, Ltd., Appellants vs. Tracy L. Newgard, Respondent – Case No. A05-1523:  Appellants sued respondent for breach of confidences and invasion of privacy after respondent, a former employee of appellants, submitted an affidavit in litigation brought against appellants by a third party.  At issue is whether respondent’s affidavit is privileged under the doctrine of judicial immunity.  (Hennepin County)

 

Wednesday, November 8, 2006, 9:00 a.m.

Courtroom 300, Minnesota Judicial Center

            State of Minnesota, Respondent vs. Scott Evan Davis, Appellant – Case No. A05-857:  On appeal from his conviction of possession of narcotics, appellant Scott Evan Davis presents the following issues for review:  (1) whether a canine sniff of an apartment, conducted from the common hallway, is a search requiring probable cause or requires only a reasonable articulable suspicion of drug-related activity; and (2) if only a reasonable articulable suspicion of drug-related activity is required, whether the officer in this case had enough information to meet that burden.  (Dakota County)

 

            State of Minnesota, Respondent vs. David Eugene Wright, Appellant – Case No. A03-1197:  Appellant David Eugene Wright was convicted by a jury of second-degree assault and possession of a firearm, based in part on the statements to police of two witnesses who did not testify at trial.  While appellant’s case was on appeal, the United States Supreme Court ruled in Crawford v. Washington, 541 U. S. 36 (2004), that the Confrontation Clause of the United States Constitution prohibits the introduction of “testimonial” hearsay statements unless the defendant has the opportunity to cross-examine the declarant.  The Court further defined “testimonial” hearsay statements in Davis v. Washington, ___ U. S. ___, 126 S. Ct. 2266 (2006).  After its decision in Davis, the Supreme Court vacated appellant’s conviction and remanded to the Minnesota Supreme Court for reconsideration in light of Davis.  The issue on remand is whether the witnesses’ statements to police were “testimonial” in nature under Davis.  (Hennepin County)

 

Thursday, November 9, 2006, 9:00 a.m.

Courtroom 300, Minnesota Judicial Center

            State of Minnesota, Respondent vs. Frederick Kemond Jackson, Appellant – Case No. A05-1882:  On appeal from his conviction of aiding and abetting first-degree murder of a clerk during the attempted robbery of a convenience store, appellant Frederick Kemond Jackson presents the following issues for review:  (1) whether the evidence was sufficient to convict appellant; (2) whether the death of the clerk was reasonably foreseeable to appellant as a probable consequence of the attempted robbery of the store; and (3) whether the district court erred in not instructing the jury on accomplice testimony.  Appellant raises additional issues in a pro se supplemental brief.  (Hennepin County)

 

            In re Petition for Disciplinary Action against William Albert Plummer, a Minnesota Attorney – Case No. A06-1352:  An attorney discipline matter that presents the issue of what discipline, if any, is appropriate based upon the facts of the matter.