EN BANC CALENDAR

Before the Minnesota Supreme Court

September 2007

SUMMARY OF ISSUES

Summaries prepared by the Supreme Court Commissioner’s Office

Tuesday, September 4, 2007, 9:00 a.m.

Supreme Court Courtroom, State Capitol

In re State of Minnesota, Petitioner. State of Minnesota, Appellant vs. Myon DeMarlo Burrell, Respondent – Case No. A07-727: The convictions of respondent Myon DeMarlo Burrell for first-degree murder and attempted first-degree murder for the benefit of a gang were reversed and the matter remanded to the district court for a new trial. State v. Burrell, 697 N.W.2d 579 (Minn. 2005). On remand, Burrell waived his right to a jury trial. The prosecution asked the district court judge to deny the waiver of a jury trial or, in the alternative, to remove himself from the case on the basis of statements allegedly made by the judge to the prosecutor about the merits of the case. The district court judge accepted the defendant’s jury trial waiver and did not recuse himself. After the chief judge of the district denied the state’s motion to remove the district court judge, the state petitioned the court of appeals for an extraordinary writ to direct the removal of the district court judge or, in the alternative, to bar Burrell from waiving a jury trial. The court of appeals denied the requested writ. The issue before the supreme court is whether the district court judge should be removed from the case. (Hennepin County)

State of Minnesota, Respondent vs. Larry Larue Clark, Appellant – Case No. A06-1476: Appellant Larry Larue Clark appeals from his 2006 conviction of aiding and abetting first-degree premeditated murder and conspiracy to commit first-degree premeditated murder in connection with a 1970 shooting. Clark presents the following issues for review: (1) whether the grand jury’s indictment of him should have been dismissed because the case was presented to the grand jury by an assistant county attorney and an assistant United States attorney who was appointed as a special prosecutor, rather than by the elected county attorney; (2) whether he is entitled to a new trial because the district court erroneously instructed the jury that it did not have to find that he aided and abetted or conspired with the other person specifically named in the indictment, or because the district court did not instruct the jury that Clark could not be convicted solely on the basis of the uncorroborated testimony of an alleged accomplice; (3) whether he is entitled to a new trial because the district court admitted Spreigl evidence that Clark was convicted of bank robbery for an incident in Nebraska five months after the shooting in Minnesota; and (4) whether the evidence was sufficient to support his convictions. (Ramsey County)

Wednesday, September 5, 2007, 9:00 a.m.

Supreme Court Courtroom, State Capitol

McIntosh County Bank, et al., Respondents vs. Dorsey & Whitney, LLP, Appellant – Case No. A06-486: Appellant Dorsey & Whitney, LLP, was retained by Miller & Schroeder to prepare documentation for loans used to finance the construction of an Indian casino in New York. Respondents are 31 of the 32 individual banks that purchased participation interests in the loans from Miller & Schroeder. The loans went into default and respondents sued Dorsey & Whitney for malpractice in connection with advice given by the law firm to Miller & Schroeder that an agreement pledging payments to be made by the tribe as security for repayment of the loans did not require approval by the National Indian Gaming Commission. The district court dismissed respondents’ lawsuit for lack of standing; the court of appeals reversed the district court and remanded the matter for trial. The issue before the supreme court is whether respondents have standing to sue Dorsey & Whitney for legal malpractice or breach of contract, either because there was an implied contract under which Dorsey & Whitney represented the participating banks, or because the participating banks were the intended third-party beneficiaries of the law firm’s services. (Hennepin County)

In re State of Minnesota, Appellant. In re the Marriage of: Christina M. Deal, petitioner, Respondent vs. Ryan S. Deal, Respondent – Case No. A07-278: Respondent Ryan S. Deal was charged with criminal sexual conduct for allegedly abusing his step-daughter. Respondent’s wife, Christina M. Deal, then filed for dissolution of marriage. Ryan Deal sought to depose his step-daughter and her brother in the marriage dissolution case. Appellant State of Minnesota sought to intervene in the marriage dissolution case to prevent the depositions from going forward on grounds that Minn. R. Crim. P. 21.01 prohibits discovery depositions in criminal matters. The district court denied the state’s motion to intervene and denied the state’s request to quash the depositions. The state petitioned the court of appeals for a writ of prohibition to prohibit the district court from allowing the depositions to go forward; the court of appeals denied the requested writ. At issue before the supreme court is whether a criminal defendant should be permitted to depose witnesses against him in a civil proceeding regarding the allegations in the criminal case before the criminal case has been resolved. (Traverse County)

Monday, September 10, 2007, 9:00 a.m.

Courtroom 300, Minnesota Judicial Center

State of Minnesota, Respondent vs. Helmut Mauer, Appellant – Case No. A05-460: Helmut Mauer appeals from the denial of his petition for postconviction relief following his conviction for possession of child pornography. The court of appeals affirmed the denial of postconviction relief. The statute under which Mauer was convicted, Minn. Stat. § 617.247 (2006), prohibits the possession of a pornographic work involving a minor, “knowing or with reason to know its content and character.” At issue is whether Minn. Stat. § 617.247 violates the First Amendment’s protections of speech and expression because it does not require the state to prove that the defendant actually knew that those appearing in the materials were minors. (Hennepin County)

EN BANC NONORAL: Leonard Schmieg, Respondent vs. County of Chisago, Relator – Case No. A07-503: Chisago County appeals from a decision of the Minnesota Tax Court that property owned by respondent Leonard Schmieg qualifies as agricultural land under Minn. Stat. § 273.13, subd. 23 (2006). At issue before the supreme court is the appropriate classification of the property for tax purposes. (Minnesota Tax Court)

EN BANC NONORAL: Joseph T. Spann, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A06-1474: Joseph T. Spann appeals from the denial of his petition for postconviction relief from his conviction of first-degree murder. Spann presents the following issues for review: (1) whether the use of a firearm during a robbery is a separate offense under Minn. Stat. § 609.11, subd. 5 (2006), which must be separately charged, proven, and submitted to the jury; (2) whether he should be barred from raising issues in a petition for postconviction relief that were not raised on direct appeal because of the allegedly ineffective assistance of appellate counsel; (3) whether his conviction of first- and second-degree murder for the same criminal act constitutes double jeopardy and a violation of due process; and (4) whether he is entitled to a new trial because African-Americans were underrepresented in the jury pool from which his jury was selected. (Hennepin County)

Tuesday, September 11, 2007, 9:00 a.m.

Courtroom 300, Minnesota Judicial Center

Deborah A. Goldman, f/k/a Deborah A. Greenwood, Respondent vs. Mark E. Greenwood, Appellant – Case No. A06-1110: In the 2001 dissolution of her marriage to appellant Mark E. Greenwood, respondent Deborah A. Goldman was awarded sole physical custody of the parties’ minor child “as long as [respondent] remains available to parent [the child] in Minnesota.” This is sometimes referred to as a LaChapelle restriction, after the case of LaChapelle v. Mitten, 607 N.W.2d 151 (Minn. App. 2000), rev. denied (Minn. May 16, 2000). In 2006, Deborah Goldman moved the court to remove the LaChapelle restriction and move the child’s residence to New York. The district court denied the motion without an evidentiary hearing, evaluating it as a request for a change in custody under Minn. Stat. § 518.18(d) (2006) and Auge v. Auge, 334 N.W.2d 393, 397 (Minn. 1983) (placing the burden of proof on the opponent of an out-of-state move). Deborah Goldman appealed the denial to the court of appeals, which reversed the district court. The court of appeals evaluated the matter under Minn. Stat. § 518.175, subd. 3 (2006), which as amended in 2006 places the burden on the party seeking to move the child’s residence to another state to show that the move is in the best interests of the child, and reversed the district court. The issues before the supreme court are: (1) whether Deborah Goldman’s motion should be evaluated under Minn. Stat. § 518.175 or under Minn. Stat. § 518.18(d); (2) whether and to what extent the 2006 amendments to Minn. Stat. § 518.175, subd. 3, overrule the supreme court’s decision in Auge v. Auge; (3) whether the district court can require a parent who has been granted sole physical custody subject to a location restriction to make a prima facie showing under Minn. Stat. § 518.18(d) in order to be entitled to an evidentiary hearing on a request to move the child’s residence to another state; and (4) whether Deborah Goldman made a prima facie showing entitling her to an evidentiary hearing. (Hennepin County)

In re Petition for Disciplinary Action against Bradley C. Rhodes, a Minnesota Attorney, Registration No. 155913 – Case No. A04-2252: An attorney discipline case that presents the question of what discipline, if any, to impose based on the facts of the matter.

Wednesday, September 12, 2007, 11:00 a.m.

Hamline Law School

State of Minnesota, Respondent vs. Moua Her, Appellant – Case No. A06‑1743: On appeal from his conviction of first-degree domestic abuse murder in the death of his wife, Moua Her presents the following issues for review: (1) whether the district court’s admission of out-of-court statements by the victim, alleging that Her had assaulted her, violated his rights under the Confrontation Clause; (2) whether the evidence was sufficient to convict him; and (3) whether the district court should have declared a mistrial after several jurors’ belongings were stolen from the jury room during the trial. (Ramsey County)