State v. Chauvin, No. A05-726 (MN 11/8/2005)

Page 1

Unpublished Opinion

State of Minnesota, Respondent, v. Richard Raymond Chauvin, Appellant.

No. A05-726.

Minnesota Court of Appeals.

Filed November 8, 2005.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).

Appeal from the District Court, Mille Lacs County, File No. K3-04-488.

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, and Jan Kolb, Mille Lacs County Attorney, (for respondent).

John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant State Public Defender, (for appellant).

Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Willis, Judge.

UNPUBLISHED OPINION

TOUSSAINT, Chief Judge

This expedited appeal is from a sentence imposed for theft by swindle, committed in violation of Minn. Stat. § 609.52, subd. 2(4) (2002). Appellant Richard Chauvin challenges a sentence departure imposed based on a finding by the jury. Chauvin has also filed a motion to strike portions of the state's brief, and the state has filed a response. Because we conclude there was no error in submitting the sentencing issue to the jury, we affirm. The motion to strike is denied.

FACTS

Appellant Richard Chauvin was charged with theft by swindle and driving after revocation. The complaint alleged that Chauvin flagged down Donald Erlandson, an 80-year-old resident of the town of Isle, Minnesota, and told him that he needed to borrow $200 to fix his truck. Erlandson was reluctant, but agreed to drive Chauvin back to the victim's house, where he could discuss it with his wife. Carol Erlandson was suspicious but wrote Chauvin a check after Chauvin wrote an IOU. Chauvin cashed the $200 check at a local gas station, then returned later to the victims' house with another story, this time claiming that he needed another $450 to fix the truck. The wife wrote Chauvin a check for $450, and Chauvin later enlisted the husband to help him when he had trouble cashing the check at the bank.

The following day, the Erlandsons received another call from a man claiming to be a state trooper and stating he was bringing Chauvin's wife to Isle with money but that another $600 was needed. This request was refused, and the Erlandsons' daughter called the police.

Before trial, the prosecutor filed a notice that the state would seek an enhanced sentence under the career-offender statute and under the sentencing guidelines based on the aggravating factor for crimes committed against victims who are particularly vulnerable due to age. See Minn. Sent. Guidelines II.D.2.b.(1).

On the first day of trial, the prosecutor notified the court that it was seeking an upward departure that, under Blakely, might require a jury determination. The court decided to bifurcate the trial, with the jury being recalled to address the sentencing issue(s) if it found Chauvin guilty. After the jury was selected, the trial court questioned Chauvin about his understanding of his right to a jury determination on the sentencing issues, and Chauvin's attorney put on the record his client's decision not to waive a jury determination, and the defense position that "a sentencing jury is [not] authorized under Minnesota law." After hearing argument on the legality of a sentencing-jury procedure, the court denied Chauvin's challenge

Don Erlandson was 80 years old at the time of the offense. Carol Erlandson was 75 years old. As the prosecutor pointed out in closing argument in the first phase of the trial, the Erlandsons were trusting people who had lived their entire lives in the small town of Isle and wanted to help other people.

After the jury found Chauvin guilty of theft by swindle, the trial court informed the jury that there would be a "second stage" of the trial, which it did not explain in detail, leaving the details until after the jury would be called back into session. The attorneys and the court then discussed possible jury instructions on the aggravating factors, as well as the "special interrogatories" to submit to the jury. The career-offender statute posed a number of problems, however, and ultimately, after a weekend adjournment, the state withdrew the career-offender statute as a departure factor.

The trial court instructed the jury on what they had to decide under the particular-vulnerability aggravating factor. No new evidence was presented, either by the state or by the defense, and in her argument to the jury the prosecutor used a predator-prey analogy to argue that Chauvin took advantage of the Erlandsons' vulnerability to the swindle. The prosecutor told the jury they would have to decide whether the Erlandsons were "like those gazelles or those antelopes out in the wild" who were vulnerable to the attacks of the lion. She argued that Chauvin picked the Erlandsons out because of the weakness he saw in them, and pointed out that Chauvin addressed Don Erlandson by his name when he approached him. The defense objected to the predator-prey argument.

After a defense closing argument and a prosecution rebuttal, the jury returned its decision, finding the Erlandsons were vulnerable adults. The trial court sentenced Chauvin to an upward durational departure of 48 months, or double the presumptive sentence, based on the jury finding.

DECISION

Chauvin argues that the trial court's sentencing-jury proceeding was unauthorized by any rule or statute and was therefore extra-legal. He also argues that he was denied due process because the offense for which he was sentenced, which included the victim-vulnerability aggravating factor, was not charged in the complaint. He also argues that the prosecutor committed prejudicial misconduct in her closing "sentencing" argument, and that the state did not prove beyond a reasonable doubt that the Erlandsons were particularly vulnerable.

Chauvin argues that the sentencing-jury proceeding initiated by the trial court was extra-legal, in that, although a jury sentencing determination may have been mandated as a matter of constitutional principle by Blakely, it was not authorized in practice by any rule or statute. Chauvin's argument relies to a large degree on the supreme court's decision in State v. Shattuck, ___ N.W.2d ___, 2005 WL 1981659 (Minn. Aug. 18, 2005) (Shattuck II), rehearing granted (Minn. Oct. 6, 2005) (amending opinion), and on decisions from other states.

The supreme court held in Shattuck I that, under Blakely, the Minnesota Sentencing Guidelines provision for upward durational departures based on judicial findings "unconstitutionally usurps the role and undermines the function of the jury." State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004). As the United States Supreme Court expressed the rule in Blakely, "When a judge inflicts punishment that the jury's verdict alone does not allow . . ., the judge exceeds his proper authority." Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 2537 (2004). In this case, we are asked to decide whether a court also exceeds its authority by declining to making judicial findings and submitting "sentencing factors" to a jury instead if that procedure is not specifically authorized by rule or statute.

Courts in several states have rejected attempts to respond to Blakely by impaneling sentencing juries in the absence of rules or statutes authorizing that procedure. See State v. Hughes, 110 P.3d 192 (Wash. 2005); State ex rel. Mason v. Griffin, 819 N.E.2d 644 (Ohio 2004); State v. Kessler, 73 P.3d 761 (Kan. 2003) (holding court could not improvise sentencing jury proceeding to respond to Apprendi). As the state points out, courts in some jurisdictions have held otherwise. See State v. Schofield, 876 A.2d 43 (Me. 2005) (holding court had "inherent judicial power" to impanel sentencing jury in response to Blakely). The state argues that the court has inherent judicial authority to submit a sentencing issue to a jury, as the district court did in this case.

Our supreme court in Shattuck II stated:

While this court has the authority to establish procedures to apply the requirements of Apprendi and Blakely to sentences in Minnesota, we leave to the legislature the task of deciding how the Sentencing Guidelines system should be altered to comport with those cases.

State v. Shattuck, ___ N.W.2d ___, 2005 WL 1981659, at *14. The court acknowledged that the 2005 legislature had responded to Blakely, enacting prospective provisions for sentencing juries and bifurcated trials, and for jury resentencing hearings. Id., at *14 n. 17. But the court declined to express any opinion about the 2005 amendments, while specifying that it did not "foreclose the district court from considering any constitutionally applicable and/or available laws on remand." Id.

The trial court here did not impanel a separate "sentencing" jury, but merely submitted an additional question to the jury already selected to determine Chauvin's guilt or innocence. That question, whether the Erlandsons were "particularly vulnerable" due to age and other conditions, was submitted after the jury had found Chauvin guilty and had adjourned. It was submitted without additional evidence, based on jury instructions extensively debated by the prosecutor and defense counsel.

Special interrogatories on issues relevant to the proper sentence to be imposed have been approved as long as the jury is instructed that it must apply the beyond-a-reasonable-doubt standard. State v. Robinson, 480 N.W.2d 644, 646 (Minn. 1992) (approving special interrogatory on date of offense, which determined whether sentencing enhancement statute applied, if accompanied by correct instruction on burden of proof); State v. Olson, 379 N.W.2d 524, 527 (Minn. 1986) (stating guidelines commission contemplated that jury would determine value of property stolen for purposes of determining presumptive sentence for receiving stolen property). This case law has been summarized as follows: "In criminal cases, a special interrogatory may...