State v. Jones, CX-89-1054
| Decision Date | 30 January 1990 |
| Docket Number | No. CX-89-1054,CX-89-1054 |
| Citation | 451 N.W.2d 55 |
| Parties | STATE of Minnesota, Respondent, v. Marvin Lee JONES, Appellant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. Where defendant makes conclusory allegations failing to establish a prima facie case of selective prosecution, a trial court's failure to reopen the issue for evaluation of new evidence does not mandate a new trial.
2. The trial court did not abuse its discretion by not readdressing a jury instruction.
3. The trial court did not abuse its discretion by refusing to grant a second continuance.
4. The evidence was sufficient to support appellant's convictions.
5. The trial court erred by imposing consecutive sentences for appellant's threats against a single complainant.
Hubert H. Humphrey, III, State Atty. Gen., Robert A. Stanich, Sp. Asst. Atty. Gen., St. Paul, Richard M. Arney, Washington County Atty., Stillwater, for respondent.
C. Paul Jones, State Public Defender, Susan K. Maki, Asst. State Public Defender, Minneapolis, for appellant.
Considered and decided by KALITOWSKI, P.J., HUSPENI and GARDEBRING, JJ., without oral argument.
Appellant alleges that his convictions for making terroristic threats must be reversed because the trial court precluded him from raising the defense of selective prosecution, erroneously refused to instruct a jury and erroneously refused to continue the matter. Appellant also alleges that the evidence is insufficient to support his convictions and that the trial court erred by imposing consecutive sentences. We affirm in part, reverse in part and remand.
[appellant] advised me that when he was released in approximately three months that he was going to find me, and when he did he was going to cut my throat.
Parkos testified that during a later security check of the area, appellant told him
that when he [appellant] got out he was going to find me and fuck me up, and he was going to find my family and fuck my family up.
Upon seeing counselor Dan Moris, appellant allegedly yelled:
You dirty ass maggot mother fucker, you're dead meat. I get out of here in three months and you're dead. You're the first one on my list.
On January 4, 1989, as Constance Bush approached appellant with coffee, Bush testified that appellant told her "get the fuck away from me with that coffee, Connie Bush" and that as she moved away appellant yelled at her "I'm going to kill you when I get out of this place."
The next evening appellant allegedly threatened Bush, stating:
Yeah, Connie Bush, I have 79 days left before I get out of here. And when I do, I'm going to come and find you and I'm going to fuck you up big time. I'm going to come and find you and I'm going to rape you * * * I'm going to take a sawed off baseball bat and I'm going to fuck you up the ass because I got 79 days left, you fucking bitch.
Each event was named in a single four count terroristic threats complaint. Appellant pleaded not guilty and moved for dismissal based on selective prosecution at the omnibus hearing. Appellant's motion was denied.
The court granted appellant's motion to continue the date set for trial to enable appellant to retain private counsel. Also, appellant's motion to reopen the issue of selective prosecution based on new evidence was deferred to the judge presiding at trial.
On the continued trial date of April 10, 1989, the selective prosecution issue was not reopened. Also, while appellant's request for a second continuance was denied, his request to have the charges severed for trial was granted. Further, because appellant was appearing pro se, the trial court required the presence of stand-by defense counsel.
At the trial on the events of January 5, 1989, appellant was allowed to make limited testimony on the selective prosecution issue. Additionally, one of appellant's three inmate witnesses, Dean Rieck, stated that appellant was often the object of taunts and abuse by the prison staff. All three of appellant's inmate witnesses indicated that they had made threats and not been prosecuted in district court but had been handled in the prison's disciplinary system. A jury convicted appellant on April 12.
Trial on the events of January 4, 1989, commenced April 17, 1989. Appellant did not testify. He was convicted on April 18, 1989. Trial on the events of November 30, 1988, started the next day. Appellant called two of the defense witnesses from the first trial who testified that appellant was harassed by members of the prison staff including Moris. Appellant was convicted on April 20, 1989.
At each trial, Spreigl evidence of the threats for which appellant was not being tried was admitted. The Spreigl evidence included the events involving Moris even though that count of the complaint was eventually dismissed.
1. Did the trial court erroneously preclude appellant from raising the defense of selective prosecution?
2. Does the trial court's refusal to clarify jury instructions require reversal?
3. Did the trial court abuse its discretion in refusing to continue appellant's trials?
4. Was the evidence sufficient to support appellant's convictions?
5. Did the trial court err by imposing consecutive sentences?
Generally, "[T]he equal protection clause of the Fourteenth Amendment forbids the discriminatory enforcement of nondiscriminatory laws." City of Minneapolis v. Buschette, 307 Minn. 60, 64, 240 N.W.2d 500, 502 (1976).
The issue of discriminatory enforcement should be decided prior to a trial on the merits because "it does not go to the guilt or innocence of the particular defendant."
State v. Hyland, 431 N.W.2d 868, 873 (Minn.Ct.App.1988) (quoting Buschette, 307 Minn. at 66, 240 N.W.2d at 503).
[T]o trigger a pretrial hearing, a defendant must allege sufficient facts to take the question past the frivolous state and raise a reasonable doubt as to the prosecutor's purpose.
Hyland, 431 N.W.2d at 873. Further,
If discriminatory enforcement is proven at the pretrial hearing, the case should be dismissed. If discriminatory enforcement is not proven at the pretrial hearing, the case should proceed to trial on the merits. Regardless of whether discriminatory enforcement is shown at the pretrial hearing, consideration of discriminatory enforcement evidence at trial is inappropriate.
Id. (emphasis added).
Regarding discriminatory enforcement, the Supreme Court has noted that "In our criminal justice system, the Government retains 'broad discretion' as to whom to prosecute" and that "This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review." Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985). Additionally, this court has stated that "[c]riminal prosecutions * * * are presumed to have been undertaken in good faith and in a nondiscriminatory manner." Hyland, 431 N.W.2d at 872.
Generally,
so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute * * * generally rests entirely in his discretion.
Wayte, 470 U.S. at 607, 105 S.Ct. at 1530 (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978)). However,
although prosecutorial discretion is broad, it is not [Therefore] the decision not to prosecute may not be "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification."
Wayte, 470 U.S. at 608, 105 S.Ct. at 1531 () (other citations omitted).
Wayte, 470 U.S. at 610, 105 S.Ct. at 1532 (quoting Personnel Administrator of Massachusetts
v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979)).
Under Hyland:
a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion or the desire to prevent his exercise of a constitutional right.
Hyland, 431 N.W.2d at 872-73 (quoting State v. Russell, 343 N.W.2d 36, 37 (Minn.1984)).
Because the effect of discriminatorily enforcing a law will be to single out certain persons for prosecution under that law, we see the "discriminatory effect" prong of the Wayte test as analogous to the "singled out for prosecution" prong of the Russell/ Hyland test. Similarly, Wayte's requirement of "discriminatory purpose" involving a course of action engaged in "because of" its adverse effects upon an identifiable group is as parallel to the "invidious" or "bad faith" element of the prosecution required under the Russell/ Hyland...
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