NO. A

21-0201

State of Minnesota

In Court of Appeals

Appellant,

Respondent.

State of Minnesota,

vs.

Derek Michael Chauvin,

___________________________

RESPONDENT’S BRIEF ___________________________

MINNESOTA ATTORNEY GENERAL Keith EllisonMatthew Frank1400 Bremer Tower 445 Minnesota Street Saint Paul, Minnesota 55101 (651) 296-3353

HOGAN LOVELLS U.S. LLP Neal Kumar KatyalSundeep Iyer 55 Thirteenth Street N.W. Washington, DC 20004 (202) 637-5600

Attorneys for Appellant

HALBERG CRIMINAL DEFENSE Eric J. Nelson (#308808) 7900 Xerxes Avenue South Suite 1700 Bloomington, Minnesota 55431 (612) 333-3673

Attorneys for Respondent

February 26, 2021

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................................................................ 2

LEGAL ISSUES ................................................................................................................. 4

STATEMENT OF THE CASE AND FACTS ................................................................. 5

ARGUMENT .................................................................................................................... 13

THE STATE CANNOT PROVE “CLEARLY AND UNEQUIVOCALLY”

THAT THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT

DENIED THE STATE’S MOTION TO REINSTATE A THIRD-DEGREE

MURDER CHARGE AGAINST MR. CHAUVIN ............................................ 13

A. Standard of Review ..................................................................................... 13

B. This Court’s decision in State v. Noor was not binding upon the district

court, and the court did not abuse its discretion in

concluding otherwise ................................................................................... 14

C. Denial of the State’s motion to reinstate the third-degree murder charge,

or to amend the Complaint to add the charge, fell squarely within the

district court’s broad discretion ................................................................... 18

D. The present case is procedurally and factually distinguishable

from Noor, precluding its application.......................................................... 20

CONCLUSION ................................................................................................................ 28 CERTIFICATE OF BRIEF LENGTH .......................................................................... 30

2

TABLE OF AUTHORITIES

Constitutional Provisions

Minn. Const. Art. I, § 6 ............................................................................................. 17, 20

Minn. Const. Art. I, § 7 ............................................................................................. 17, 20

Minn. Const., Art. I, § 11 ................................................................................................. 27 U.S. Const., Art. I, § 10 ................................................................................................... 27

U.S. Const., amend. VI .............................................................................................. 17, 20

U.S. Const., amend. XIV ........................................................................................... 17, 20

Statutes and Rules

Minn. Stat. § 609.19, subd. 2(1) ...................................................................................... 10

Minn. Stat. § 609.195(a) .......................................................................................... 4, 9, 23

Minn. Stat. § 609.205, subd. 1 ......................................................................................... 10

Minn. R. Civ. App. P. 136.02 .............................................................................................. Minn. R. Crim. P. 3.04, subd. 2 ......................................................................................... 4

Minn. R. Crim. P. 28.04 ..................................................................................................... 4

Minn. R. Evid. 609 .......................................................................................................... 13

Minn. R. Civ. P. 132.01 ................................................................................................... 28 MPD Policy 5-316(IV)(A)(1) (2019) ................................................................................ 8

State Cases

Adams v. Harpstead, 947 N.W.2d 838 (Minn. App. 2020) ............................................. 16 Bernhardt v. State, 684 N.W.2d 465 (Minn. 2004) ......................................................... 22

City of Waite Park v. Office of Admin. Hear’gs,

758 N.W.2d 347 (Minn. App. 2008) ........................................................................ 14

Fabio v. Bellomo, 504 N.W.2d 758 (Minn. 1993) ........................................................... 13

Hoyt Inv. v. Bloomington Commerce & Trade Ctr. Assocs., 418 N.W.2d 173 (Minn. 1988) ........................................................................... 14, 15

Loving v. State, 891 N.W.2d 638 (Minn. 2017)............................................................... 22

State v. Barnes, 713 N.W.2d 325 (Minn. 2006) .................................. 4, 20, 23, 25, 27, 28

State v. Baxter, 686 N.W.2d 846 (Minn. App. 2004) .......................... 4, 18, 19, 20, 21, 22

State v. Collins, 580 N.W.2d 36 (Minn. App. 1998) ................................. 4, 15, 16, 17, 18 State v. Gilmartin, 535 N.W.2d 650 (Minn. App. 1995) ................................................. 14

State v. Hall, 931 N.W.2d 737 (Minn. 2019)............................................................. 20, 28

State v. Hanson, 176 N.W.2d 607 (Minn. 1970) ................................. 4, 20, 23, 25, 27, 28

State v. Harris, 895 N.W.2d 592 (Minn. 2017) ............................................................... 22

State v. Jackson, 749 N.W.2d 353 (Minn. 2008) ............................................................. 13 State v. Johnson, 514 N.W.2d 551 (Minn. 1994) ............................................................ 18

State v. Kim, 398 N.W.2d 544 (Minn. 1987) ................................................................... 13

3

State v. Leinweber, 228 N.W.2d 120 (Minn. 1975) ............................................. 21, 23, 28

State v. Lopez, 778 N.W.2d 700 (Minn. 2010) ................................................................ 23 State v. Manning, 532 N.W.2d 244 (Minn. App. 1995) .................................................. 28

State v. M.L.A., 785 N.W.2d 763 (Minn. App. 2010) ...................................................... 18

State v. Mytych, 194 N.W.2d 276 (Minn. 1972) ........................................................ 21, 28

State v. Noor, No. A19-1089, —N.W.2d—, 2021 WL 317740

(Minn. App. 2021) ......................................... 12, 15, 16, 18, 20, 21, 23, 26, 27, 28, 29 State v. Stewart, 276 N.W.2d 51 (Minn. 1979) ................................... 4, 20, 23, 25, 27, 28

State v. Stroud, 459 N.W.2d 332 (Minn. App. 1990) .................................................. 4, 13

State v. Soto, 855 N.W.2d 303 (Minn. 2014)................................................................... 13

State v. Souder, 902 N.W.2d 86 (Minn. App. 2017) ....................................................... 13

State v. Wahlberg, 296 N.W.2d 408 (Minn. 1980) .................. 4, 20, 21, 23, 24, 25, 27, 28 State v. Whitley, 649 N.W.2d 180 (Minn. App. 2002)..................................................... 13

State v. Zumberge, 888 N.W.2d 688 (Minn. 2017) ................. 4, 20, 22, 23, 24, 25, 27, 28

Warrick v. Giron, 290 N.W.2d 166 (Minn. 1980) ........................................................... 18

Federal Cases

Collins v. Youngblood, 497 U.S. 37 (1990) ..................................................................... 27

Stephens v. Thomas, 19 F.3d 498 (10th Cir. 1994) ........................................................... 27

Weaver v. Graham, 459 U.S. 24 (1990) .......................................................................... 27

Unpublished Cases

Fishel v. Encompass Indemnity Co., No. A16-1659, 2017 WL 1548630

(Minn. App. 2017) .................................................................................................... 15 Kelly v. State Farm Mut. Auto Ins. Co., No. C0-02-217, 2002 WL 1837992

(Minn. App. Aug. 13, 2002) ..................................................................................... 15

Roberts v. State, No. A14-0822, 2015 WL 1013688 (Minn. App. Mar. 9, 2015) ........... 18

Shaw v. State, No. A14-0745, 2014 WL 7344306 (Minn. App. Dec. 29, 2015) ............. 18

State v. Hall, No. A17-0710, 2019 WL 5885081 (Minn. App. Nov. 12, 2019) .............. 21 State v. Kowalzyk, No. A18-1397, 2019 WL 3545835 (Minn. App. Aug. 5, 2019) ........ 15

State v. Lindsey, No. A12-0109, 2013 WL 141633 (Minn. App. Jan. 14, 2013) ............ 15

State v. Taylor, No. A14-0938, 2015 WL 1757874 (Minn. App. Apr. 20, 2015) ........... 15

State v. Thomas, No. A15-0468, 2016 WL 1174864 (Minn. App. Mar. 28, 2016) ......... 18

State v. Trahan, No. A13-0931, 2014 WL 4798876 (Minn. App. Sep. 29, 2014) .......... 18 Willette v. Smith, No. CX-99-1668, 2000 WL 687631

(Minn. App. May 30, 2000) ...................................................................................... 15

Secondary Sources

10 Minnesota Practice, Jury Instr. Guides—Criminal, 11.38 (6th ed.) ........................... 24

4

LEGAL ISSUES

1. Whether the district court abused its discretion when it denied the State leave to

amend the complaint to add a third-degree murder charge, and in so doing, relied on

the Hanson-Stewart-Wahlberg-Barnes-Zumberge line of supreme court precedent

to reach its decision, rather than this Court’s recent Noor decision.

The District Court acted within its broad discretion to deny the State’s pretrial

motion and properly relied upon the Hanson-Stewart-Wahlberg-Barnes-Zumberge

line of supreme court precedent, rather than this Court’s recent Noor decision, in so

doing.

Apposite Authority:

Minn. Stat. § 609.195(a)

Minn. R. Crim. P. 3.04, subd. 2

Minn. R. Crim. P. 28.04 State v. Barnes, 713 N.W.2d 325 (Minn. 2006)

State v. Baxter, 686 N.W.2d 846 (Minn. App. 2004)

State v. Collins, 580 N.W.2d 36 (Minn. App. 1998)

State v. Hanson, 176 N.W.2d 607 (Minn. 1970) State v. Stewart, 276 N.W.2d 51 (Minn. 1979)

State v. Stroud, 459 N.W.2d 332 (Minn. App. 1990)

State v. Wahlberg, 296 N.W.2d 408 (Minn. 1980)

State v. Zumberge, 888 N.W.2d 688 (Minn. 2017)

5

STATEMENT OF THE CASE AND FACTS

On May 25, 2020 at approximately 8:08 p.m., Minneapolis Police Department

(“MPD”) Officers Thomas Lane and J. Alexander Kueng responded to a 911 call from Cup

Foods, a business located at the intersection of Chicago Avenue and 38th Street in

Minneapolis. (Defendant Derek Michael Chauvin’s Memorandum of Law in Support of

Motion to Dismiss for Lack of Probable Cause (“M.D.”), filed Aug. 28, 2020, at 1). The

caller alleged that a man had made a purchase using a counterfeit $20 bill and appeared

under the influence of a substance. (M.D. at 1). When Officers Kueng and Lane arrived,

store personnel directed the officers to a vehicle parked across 38th Street from the store

and indicated that the man who had passed the bill was inside the vehicle. The officers

approached the vehicle, where the man, later identified as George Floyd, was sitting in the

driver’s seat. Two other individuals were in the vehicle with Mr. Floyd: Shawanda Hill and

Morries Hall. (Id. at 2).

While approaching vehicle, Officers Lane and Kueng observed Mr. Floyd moving

furtively. In light of the furtive movements, the officers ordered Mr. Floyd to place his

hands on the vehicle’s steering wheel, which he repeatedly refused to do until Officer Lane

drew his sidearm. Mr. Floyd began to cry. When Mr. Floyd finally placed his hands on the

steering wheel, Officer Lane immediately holstered his weapon and ordered Mr. Floyd to

exit the vehicle. Mr. Floyd physically resisted exiting the car until the officers forcibly

removed him. Throughout the entire encounter, Mr. Floyd spoke quickly, occasionally

incoherently, and was generally nonresponsive to officers’ questions and commands. (Id.).

6

When officers initially approached Mr. Floyd, a white object was visible in Mr.

Floyd’s mouth. At one point, Mr. Floyd turned away from officers, and when he faced

them again, the white object was no longer visible. (M.D. at 2). Outside the vehicle, Mr.

Floyd continued to struggle and actively resist the officers as they attempted to handcuff

him. Officers noted that he was acting erratically and repeatedly inquired whether Mr.

Floyd was drunk or “on something.” (Id.). Officers also noted that Mr. Floyd had foam

coming from his mouth. As an explanation, Mr. Floyd appears to say, “I was just hooping

earlier.” (Id. at 3). In the struggle that ensued, Mr. Floyd claimed that he could not breathe,

that he was claustrophobic and could not get into the back seat of the squad vehicle, and

called out for “Mama.” (See M.D. at 4-5).

When questioned by police later, both of the passengers in Mr. Floyd’s vehicle

asserted their belief that Mr. Floyd was under the influence of narcotics. Ms. Hill told

investigators that Mr. Floyd was “probably on some pills or something.” On the day after

the Cup Foods incident, Mr. Hall fled the state. Ultimately, Minnesota BCA agents had to

travel to Texas, where Mr. Hall had been arrested, and interview him at a Texas Rangers

station. (M.D. at 3).

At the time officers approached George Floyd in the vehicle, there were outstanding

felony warrants in the State of Minnesota for Mr. Hall, including one for being a felon in

possession of a firearm. (Id.). When questioned at the scene, Mr. Hall provided officers

with a false name and another person’s identification. (Id.). However, because of George

Floyd’s resistance, officers were unable to question Mr. Hall, search his person or his

backpack. In fact, surveillance video from the nearby Dragon Wok restaurant shows that

7

Mr. Hall appeared to use Mr. Floyd’s resistance as a distraction to destroy evidence. The

video demonstrates that Mr. Hall watched through the windows of Mr. Floyd’s vehicle to

ensure that he was not being observed by police. (M.D. at 3). Then, using Ms. Hill’s body

and the vehicle to shield himself from view, Mr. Hall furtively dropped something into the

sewer drain on the street. (Id.). Officer Lane did not feel that he could search the vehicle

himself with two other subjects present while Officer Kueng monitored Mr. Floyd, so the

officers made the decision to secure Mr. Floyd in their squad before continuing their

investigation. (Id.). Because of Mr. Floyd’s resistance, however, Mr. Hall was able to

dispose of evidence and avoid being searched or arrested for his outstanding warrants. (Id.).

When finally questioned in Texas, Mr. Hall, who had spent the entire day with Mr.

Floyd up until and including the incident at Cup Foods, told investigators that he knew Mr.

Floyd to use pills and that Mr. Floyd had stated his intention to do so on the day of his

death. (M.D. at 4). Hall told investigators that Mr. Floyd had a drug addiction. (Id.). Hall

believed that Mr. Floyd had recently used a pill that Mr. Hall thought to be a combination

of Adderall and “whatever they put in the ecstasy pill.” (Id.). Mr. Hall suspected that Mr.

Floyd had ingested drugs just prior to the May 25, 2020, incident because Mr. Floyd had

been acting normal all day but, after returning to the vehicle from Cup Foods, Mr. Floyd

fell asleep in the driver’s seat of the car. (Id.). According to Mr. Hall, “it was so fast I look

at him and I’m like all of sudden you know he’s just sleeping, he was sleeping.” Floyd had

“just nodded off.” (Id.).

Mr. Floyd continued to struggle, both actively and passively resisting officers’

attempts to effect his arrest as they walked Mr. Floyd across the street to their squad car.

8

Upon arriving at the squad, Mr. Floyd increased his active resistance. A struggle ensued

when Officers Lane and Kueng attempted to place Mr. Floyd, who was well over six feet

tall, muscular, and weighed over two hundred pounds, into the back seat of their squad.

(M.D. at 4).

It was during this struggle that MPD Officers Tou Thao and Derek Chauvin, the

Respondent herein, arrived on scene as backup for Officers Lane and Kueng and to assist

with effecting the arrest of Mr. Floyd. Even with the assistance of Officers Thao and

Chauvin, Mr. Floyd was able to resist, kicking and forcing himself out of the squad

whenever officers managed to get him into the back seat. Ultimately, Officers Chauvin and

Kueng were able to place Mr. Floyd in a prone position on the street next to the squad. This

resulted in Officer Chauvin being positioned closest to Mr. Floyd’s shoulders and Officer

Kueng near Mr. Floyd’s waist, while Officer Lane attempted to control Mr. Floyd’s legs.

(Id. at 4-5).

Mr. Floyd continued to struggle on the ground; Officer Chauvin restrained his

shoulder and neck area using a knee and one of Mr. Floyd’s hands with his own. Officer

Kueng restrained Mr. Floyd’s arms, and Officer Lane restrained Mr. Floyd’s legs, effecting

the first stage of MPD’s Maximal Restraint Technique (“MRT”). (Id. at 5). Maximal

Restraint Technique is used “in situations where handcuffed subjects are combative and

still pose a threat to themselves, officers or others, or could cause significant damage to

property if not properly restrained.” MPD Policy 5-316(IV)(A)(1). A hobble restraint

device (‘hobble”) is typically required to properly effect the MRT. (M.D. at 5).

9

Officer Chauvin asked Officers Lane and Kueng if they had a hobble, and receiving

an affirmative response, then asked Officer Thao to retrieve the hobble from the back of

their squad. (Id. at 5). Officer Chauvin asked if Officers Lane and Kueng had called EMS,

and Officer Lane responded that EMS was “on their way.” (Id.). Officer Chauvin then

asked Officers Lane and Kueng, “Do you want to hobble [Mr. Floyd] at this point, then?”

(Id.). Because they believed EMS arrival was imminent, the officers decided against using

a hobble, which would have significantly delayed the transfer of Mr. Floyd into the

ambulance and would also have required an MPD sergeant to respond to the scene. Several

seconds later, Officer Thao asked Officer Lane if had requested a “code 3” (i.e., lights and

sirens activated) response from EMS. (Id.). When Lane responded in the negative, Officer

Thao immediately upgraded the EMS response to “code 3.” The officers continued to

restrain Mr. Floyd until EMS arrived. The responding ambulance arrived at 8:27 p.m.

Emergency personnel placed Mr. Floyd on a stretcher and transported him to Hennepin

County Medical Center, where he was later pronounced dead. (M.D. at 5-6).

In the aftermath of the incident, Minneapolis Police Chief Medaria Arradondo met

with several “local faith leaders… from the African American community,” and after

conferring with them, made the decision to terminate Officer Chauvin from the

Minneapolis Police force on May 26, 2020—less than 24 hours after the incident. (M.D. at

6). Mr. Chauvin was subsequently charged, on May 29, 2020, with one count of Third

Degree Murder—Perpetrating Eminently Dangerous Act and Evincing Depraved Mind, in

violation of Minn. Stat. § 609.195(a), and one count of Second Degree Manslaughter—

10

Culpable Negligence Creating Unreasonable Risk, in violation of Minn. Stat. § 609.205,

subdivision 1. (Id.).

In a June 1, 2020, interview at the Attorney General’s Office, in the presence of

Assistant Attorney General Frank, Hennepin County Medical Examiner Dr. Andrew Baker

informally shared the findings of his May 26, 2020, autopsy of George Floyd. (M.D. at 6).

According to Dr. Baker, he found

No petechiae in eyelids. No bruising in neck on any muscles or injuries to

structures…. No bruises on back, or evidence of blunt trauma to back….

Heart is at upper limit of size, and [with] most cases of untreated

hypertension can put you at risk for death—[You] get to death quicker

because it needs more oxygen [which] certain intoxicants can exacerbate…. Specimens for lab testing were drawn at HCMC—this is better than at

autopsy, [because it] more accurately reflects actual [levels] at death.

Fentanyl at 11 ng/ml—this is higher than chronic pain patients. If [Mr. Floyd] were found dead at home alone and no other apparent causes, this could be

acceptable to call an OD. Deaths have been certified [with] levels of

3[ng/ml]….

Meth[amphetamine] 19 ng/ml—this is relatively low, but meth’s bad for your

heart….

From videos I have seen it appears like his knee is on the side of his neck,

not where the structures are.

(Id. at 6-7) (emphasis added). Mr. Floyd’s lungs were two to three times their normal

weight. (Id. at 7). In spite of the Medical Examiner’s findings, the State filed an Amended

Complaint on June 3, 2020, adding one count of Second Degree Murder—Unintentional—

While Committing a Felony, in violation of Minn. Stat. § 609.19, subdivision 2(1). The

Amended Complaint alleged that Mr. Chauvin had perpetrated a third degree assault upon

Mr. Floyd, resulting in Mr. Floyd’s death.

11

The Medical Examiner’s report released on June 4, 2020, noted that Mr. Floyd had

cannabinoids in his system at the time of death, in addition to fentanyl and

methamphetamine. It also revealed that Mr. Floyd had, as he told officers, recently been ill

with COVID-19 and was still positive for the disease at the time of his death. The autopsy

further revealed that Mr. Floyd had arteriosclerotic and hypertensive heart disease,

hypertension, and sickle cell trait. According to the Hennepin County Medical Examiner,

the cause of Mr. Floyd’s death was “cardiopulmonary arrest complicating law enforcement

subdual, restraint, and neck compression.” (M.D. at 7).

On August 28, 2020, Respondent moved the district court to dismiss all three counts

of the Complaint for lack of probable cause. On October 21, 2020, the district court filed a

107-page memorandum opinion and order upholding the second-degree murder and

manslaughter charges but dismissing the third-degree murder charge against Mr. Chauvin.

(See Memorandum Opinion, 10-21-2020, at 52-67). At the time it issued its order, the

district court explicitly stayed dismissal of the third-degree murder charge “for five days

to allow the State to consider a pretrial appeal.” (Order, 10-21-2020, at 2). The State did

not file a pretrial appeal at that time, nor did the State file a motion to reconsider the district

court’s order dismissing the third-degree murder charge within the five days during which

the dismissal was stayed.

On February 4, 2021, the State filed a document styled “Motion to Reinstate Third-

Degree Murder Charge or, in the Alternative, to Amend the Complaint.” The State advised

that the district court “could also construe this as a motion for reconsideration of the Court’s

order dismissing the third-degree murder charge.” (State’s Mtn., 2-4-2021, at 7 n.1). The

12

State’s purported impetus for its motion was this Court’s decision in State v. Noor, No.

A19-1089, —N.W.2d—, 2021 WL 317740 (Minn. App. 2021). Noor addressed the propriety

of a third-degree murder charge in the context of a Minneapolis police officer’s shooting of

an unarmed citizen. The State contended that Noor was “precedential,” and the district court

was, therefore, bound to reconsider its order dismissing the third-degree murder charge more

than three months prior. (State’s Mtn., 2-4-2021, at 7). The district court, on February 11,

2021, denied the State’s motion, concluding, among other things, that Noor was not yet

binding precedent. (Order and Memo., 2-11-21, at 5).

On February 12, 2021,1 the State filed its third and fourth pretrial appeals of district

court orders in the George Floyd matter in the course of approximately two weeks. In its

most recent pretrial filing, the State appealed the district court’s order denying its “Motion

to Reinstate Third-Degree Murder Charge or, in the Alternative, to Amend the

Complaint”/motion to reconsider. On February 16, 2021, Respondent moved this Court to

dismiss the State’s appeal as untimely and otherwise improper.

This Court denied Respondent’s motion and found that the State had met its pretrial

appeal burden of demonstrating “critical impact,” allowing this appeal to move forward.

On February 25, 2021, counsel for Mohammed Noor filed a Petition for Further Review of

this Court’s decision in the Noor case. (See No. A19-1089 docket).

1 On the same day, this Court dismissed two prior pretrial appeals in the same matters. See

State v. Chauvin, No. A21-0133 (Minn. App. Feb. 12, 2021); State v. Kueng, et al., No.

A21-0135 (Minn. App. Feb. 12, 2021). In those consolidated cases, the State had appealed pretrial orders denying the State’s motion for a continuance and amending the district

court’s previous order joining all four defendants for trial.

13

ARGUMENT

THE STATE CANNOT PROVE “CLEARLY AND UNEQUIVOCALLY” THAT

THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT DENIED THE

STATE’S MOTION TO REINSTATE A THIRD-DEGREE MURDER CHARGE

AGAINST MR. CHAUVIN.

A. Standard of Review.

In a pretrial appeal pursuant to Minn. R. Crim. P. 28.04, an appellate court “will

reverse the trial court only if the state can prove clearly and unequivocally both that the

trial court erred and that the error will have a critical impact on the trial.” State v. Stroud,

459 N.W.2d 332, 334 (Minn. App. 1990) (citing State v. Kim, 398 N.W.2d 544, 547 (Minn.

1987). This Court has already found that the State met its requisite showing of critical

impact. However, the State still bears the burden of proving clear and unequivocal error on

the part of the district court.

The district court has broad discretion to grant or deny leave to amend a complaint,

and its ruling will not be reversed absent a clear abuse of that discretion. Fabio v. Bellomo,

504 N.W.2d 758, 761 (Minn. 1993). When a “district court misinterprets or misapplies the

law, it abuses its discretion.” State v. Souder, 902 N.W.2d 86, 89 (Minn. App. 2017)

(reviewing a district court’s application of Minn. R. Evid. 609 for abuse of discretion),

review denied (Minn. Dec. 27, 2017). Abuse of discretion review necessarily requires

resolving any legal questions de novo. See State v. Soto, 855 N.W.2d 303, 308 n.1 (Minn.

2014); State v. Jackson, 749 N.W.2d 353, 357 (Minn. 2008). “Interpretation of the rules of

criminal procedure is a question of law” requiring de novo review. State v. Whitley, 649

N.W.2d 180, 183 (Minn. App. 2002).

14

The State, therefore, must clearly and unequivocally prove that the district court

abused its discretion when it denied the State’s motion to reinstate a third-degree murder

charge against Mr. Chauvin. Clearly, the State cannot meet its burden.

B. This Court’s decision in State v. Noor was not binding upon the district court,

and the court did not abuse its discretion in concluding otherwise.

The State argues that this Court’s opinion in Noor was binding on the district court

at the time it was issued as a “precedential” opinion on the Court’s website. However, in

so doing, the State brazenly ignored—or misstated—clearly established Minnesota law.

This Court is an “intermediate appellate court.” State v. Gilmartin, 535 N.W.2d 650,

653 (Minn. App. 1995), review denied (Minn. Sep. 20, 1995). Its orders do not become

final until at least 30 days after the opinion has issued—the amount of time a party is

granted to petition the Minnesota Supreme Court for further review. Minn. R. Civ. App.

Pro. 136.02. If a party files a petition for further review, entry of this Court’s judgment is

stayed until action is taken on the petition. Id. If the supreme court denies the petition, this

Court’s judgment becomes final. Id.; City of Waite Park v. Office of Administrative

Hearings, 758 N.W.2d 347, 353 (Minn. App. 2008) (court of appeals opinions become

final when “further review is denied by the supreme court or the time to seek further review

has passed”), review denied (Minn. Feb 25, 2009).

Similarly, decisions by the Minnesota Court of Appeals do not become precedential

or binding on lower courts until the judgment in the case has become final. See, e.g., Hoyt

Inv. v. Bloomington Commerce & Trade Ctr. Assocs., 418 N.W.2d 173, 176 (Minn. 1988).

Relying on Hoyt, this Court explicitly held that its “decisions do not have precedential

15

effect until the deadline for granting review has expired.” State v. Collins, 580 N.W.2d

36, 43 (Minn. App. 1998), review denied (Minn. Jul. 16, 1998) (emphasis added).2

The decision in State v. Noor was issued on February 1, 2021. If neither party had

petitioned for further review, judgment would not have been final—and the decision would

not have acquired precedential authority—until at least March 3, 2021. However, counsel

for Mr. Noor has filed a petition for review in the Noor matter. This means that the Noor

decision may not become final and acquire precedential authority for several months. Yet,

given that Noor was an extremely high-profile case, which garnered international attention,

and that one member of the three-judge panel dissented, a fair likelihood exists that the

Minnesota Supreme Court will grant review. Thus, depending on the outcome of the

petition for review and potential supreme court decision, this Court’s opinion in Noor may,

in fact, never become precedential.

In its brief, the State alleges that the district court’s reliance on Collins and, thereby,

Hoyt, supra, was error. Yet, in its argument that Noor should be precedential and binding

on the district court, as well as this Court, the State, tellingly, failed to cite any precedential

2 Accord State v. Kowalzyk, No. A18-1397, 2019 WL 3545835, at *5 (Minn. App. Aug. 5,

2019), review denied (Minn. Oct. 29, 2019); Fishel v. Encompass Indemnity Co., No. A16-1659, 2017 WL 1548630 at *2 (Minn. App. 2017); State v. Taylor, No. A14-0938, 2015

WL 1757874 at *2 (Minn. App. Apr. 20, 2015), review denied (Minn. Jun. 30, 2015); State

v. Lindsey, No. A12-0109, 2013 WL 141633, at *4 (Minn. App. Jan. 14, 2013), review

granted (Mar. 27, 2013), stay granted (Mar. 27, 2013), stay vacated, review denied (Nov.

12, 2013); Kelly v. State Farm Mut. Auto Ins. Co., No. C0-02-217, 2002 WL 1837992, at *3 (Minn. App. Aug. 13, 2002); Willette v. Smith, No. CX-99-1668, 2000 WL 687631, at

*1 (Minn. App. May 30, 2000).

16

authority from Minnesota 3 that contradicts Collins. Rather it relies largely on

nonprecedential, unpublished opinions, non-Minnesota law, and secondary materials to

support its argument. In fact, Collins is the only binding, on-point precedent that the State

refers to in its argument regarding precedential authority. (See App. Br. at 18-25).

The State goes on to make the specious argument that “if district courts can ignore

this Court’s precedent so long as the judgment is not yet final, it may be years before this

Court’s opinions gain stare decisis effect, and years before the rule of law prevails.” (Id. at

23) (emphasis in original). This argument ignores the fact that the vast majority of decisions

by panels of this Court become final within 90 days—the time in which to file a petition

for review (30 days) and the time in which the supreme court has to act upon the petition

(60 days)—because such a low percentage of this Court’s decisions are actually reviewed

in a given year. Yet, in the event that review is granted, there is no guarantee that a panel’s

decision will be affirmed. Thus, as noted supra, it is possible that a published opinion of

this Court may never become precedential.

The dangers that the State ignores in its rush to rely upon a nonfinal opinion to drive

prosecutorial decision-making are manifest injustice and further waste of judicial

resources. If this Court overturns the district court’s denial of the State’s motion on the

basis that Noor is precedential, allowing the State to re-charge Mr. Chauvin with third

degree murder, and he is convicted, but Noor is subsequently overturned, this Court would

3 “Unpublished opinions of the Court of Appeals are not precedential” and should not be

cited as binding precedent. Adams v. Harpstead, 947 N.W.2d 838, 846 (Minn. App. 2020),

review denied (Oct. 1, 2020).

17

very likely find itself in the position of having to reverse the conviction on appeal. On the

other hand, waiting for a judgment to become final before holding that a rule of law has

been established makes far more sense. Even if it “may be years” before it occurs.

The State argues that having to wait for a judgment of this Court to become final

before applying the opinion’s rule of law “would be deeply unfair to litigants.” (App. Br.

at 4). However, this is a criminal matter. The “litigants” are the government and an

individual the government wishes to punish. A criminal defendant is guaranteed a fair trial

and due process under the United States and Minnesota constitutions. U.S. Const. amends.

VI, XIV; Minn. Const., Art. I, §§ 6, 7. Using a rule of law that is not yet final to charge and

possibly convict such a defendant—on the grounds that he could always appeal from his

prison cell, if a holding of this Court is overturned—would undermine both of these

constitutional principles.

Finally, the State’s attempt to distinguish Collins is, at best, misguided. The Collins

court held—without qualification—that this Court’s “decisions do not have precedential

effect until the deadline for granting review has expired.” 580 N.W.2d at 43 (emphasis

added). Again, the State, in its brief, refers to no precedential authority that either declares

that Collins is no longer valid law or otherwise limits its holding. (See App. Br. at 25-29).

The State does cite to one published case in its attempt to distinguish Collins: State v.

M.L.A., 785 N.W.2d 763 (Minn. App. 2010), review denied (Minn. Sep. 21, 2010). In

M.L.A., this Court stated that it, as well as district courts, are “bound by supreme court

precedent and the published opinions of the court of appeals.” Id. at 767. But read together

with Collins, the holding of M.L.A. clearly refers to published opinions that have become

18

final judgments. Moreover, this Court implied in its holding, and subsequently confirmed

in several unpublished decisions, that application of M.L.A.’s rule is limited to “factually

similar cases.” Shaw v. State, No. A14-0745, 2014 WL 7344306, at *2 (Minn. App. Dec.

29, 2015), review denied (Minn. Mar. 17, 2015) (emphasis added).4 As shown infra, in

section D, other than involving two Minneapolis Police Officers who were initially charged

with third-degree murder, Noor bears very little factual resemblance to the present case.

Notwithstanding the clear language of Collins, the marked lack of factual similarity

between this case and Noor renders Noor nonbinding in the present matter. As much as the

State would prefer otherwise, Collins was binding on the district court in this case—which

correctly relied upon it in denying the State’s motion—and Noor, simply put, was not.

C. Denial of the State’s motion to amend the Complaint to add a third-degree

murder charge fell squarely within the district court’s broad discretion.

This Court has affirmed that a district court retains broad discretion over how a case

proceeds once it is filed. State v. Baxter, 686 N.W.2d 846, 851-52 (Minn. App. 2004)

(citing State v. Johnson, 514 N.W.2d 551, 556 (Minn. 1994)). “This includes the power to

grant or deny the prosecutor’s request to amend the complaint.” Id. at 852; see Warrick

v. Giron, 290 N.W.2d 166, 169 (Minn. 1980) (“The decision whether to permit a party to

amend pleadings rests within the discretion of the trial court and will not be reversed in the

4 See State v. Trahan, No. A13-0931, 2014 WL 4798876, at *3 (Minn. App. Sep. 29,

2014), rev’d on other grounds, 870 N.W.2d 396 (Minn. App. 2015), affirmed, 886

N.W.2d 216 (Minn. 2016); Roberts v. State, No. A14-0822, 2015 WL 1013688, at *3 (Minn. App. Mar. 9, 2015), review denied (Minn. May 19, 2015); State v. Thomas, No.

A15-0468, 2016 WL 1174864, at *3 (Minn. App. Mar. 28, 2016), review denied (Minn.

Jun. 21, 2016).

19

absence of clear abuse of such discretion”). A “district court’s inherent authority to grant

or deny a motion to amend a complaint does not interfere with the prosecutor’s authority

to charge” because prosecutorial charging authority “only lasts until the time of filing.”

Baxter, 686 N.W.2d at 852 (citing Johnson, 514 N.W.2d at 556). Here, the district court

acted well within its broad authority when it denied the State’s motion to reinstate or add

a third-degree murder charge against Mr. Chauvin.

Motions to amend or issue a new complaint are governed by Minn. R. Crim. P. 3.04,

subd. 2. However, the rule “does not state that any motion to amend a complaint made prior

to trial must be granted.” Baxter, 686 N.W.2d at 852 (emphasis added). “While some courts

have allowed amendments to complaints up to the point of jury selection, this does not

negate the fact that a district court retains broad discretion over how a case proceeds once

it is filed.” Id. In Baxter, on which the State relies in its brief, this Court concluded that the

district court acted well within its broad discretion when it denied the State’s motion to

amend a complaint to add a charge on the eve of trial. The Baxter court found that

“amendment would add an additional count…. Such an amendment would require that

additional elements of a crime be proven, would permit the presentation of additional

defenses, and would allow for a greater penalty.” Id. at 853.

Here, barely a month before trial and immediately on the heels of two previous

pretrial appeals, the State moved the district court to amend the complaint to add/reinstate

a third-degree murder charge the court had dismissed months earlier. At that point,

Respondent and the court had been proceeding under the presumption that third-degree

murder would not be an issue against which Mr. Chauvin would have to prepare a defense,

20

as the matter had already been litigated. Here, allowing amendment of the Complaint to

add or reinstate the charge, as in Baxter, “would require that additional elements of a crime

be proven, would permit the presentation of additional defenses, and would allow for a

greater penalty.” Permitting amendment on such short notice would violate Mr. Chauvin’s

constitutional rights to a fair trial and to present a complete defense. U.S. Const., amends.

VI, XIV; Minn. Const., Art. I, §§ 6, 7. Therefore, as in Baxter, the district court acted well

within its broad discretion when it denied the State’s motion on the eve of what may well

be the most-watched trial in this state’s history.

D. The present case is procedurally and factually distinguishable from Noor,

precluding its application.

Even if this Court were to find Noor to be currently binding upon itself and the

district court as precedential authority, it is inapposite here. The long line of supreme court

cases on which the district court relied to conclude that a third-degree murder charge is

inappropriate on the facts of this case hold that “[t]hird degree murder cannot occur when

the defendant’s actions were focused on a specific person.” State v. Zumberge, 888

N.W.2d 688, 698 (Minn. 2017) (emphasis added); accord State v. Hanson, 176 N.W.2d

607, 614-15 (Minn. 1970); State v. Stewart, 276 N.W.2d 51 (Minn. 1979); State v.

Wahlberg, 296 N.W.2d 408, 417 (Minn. 1980); State v. Barnes, 713 N.W.2d 325, 331

(Minn. 2006); State v. Hall, 931 N.W.2d 737, 743 n.9 (Minn. 2019) (stating the court’s

conclusion is “not inconsistent with” Hanson, which held that murder in the third degree

“excludes a situation where the animus of the defendant is directed toward one person”)

(citations omitted).

21

This Court distinguished Noor procedurally from this line of precedent, stating that

these cases “do not involve posttrial appellate review of whether evidence was sufficient

to sustain a conviction of third-degree murder…. Specifically, the defendants in those cases

argued that they were entitled to an instruction on a lesser offense of third-degree murder.”

Noor, slip op. at 13. The Noor panel, instead, relied on a much narrower set of third-degree

murder caselaw centered around the supreme court’s half-century-old decision in State v.

Mytych, 194 N.W.2d 276, 282 (Minn. 1972). The supreme court, itself, subsequently

cautioned that Mytych was not a “typical application of [third-degree murder].” State v.

Leinweber, 228 N.W.2d 120, at 123 n.3 (Minn. 1975); Wahlberg, 296 N.W.2d at 417.5

Unlike Noor, however, the present case does not “involve posttrial appellate review

of whether evidence was sufficient to sustain a conviction of third-degree murder.” Rather,

this case is a pretrial review of a district court’s denial of a motion to amend the complaint

to add or reinstate an already-dismissed charge. Thus, it is a review of a district court’s

pretrial discretionary act, Baxter, 686 N.W.2d at 852, and not a factfinder’s verdict. The

district court’s conclusion that the evidence presented by the State does not support a

charge is more akin to deciding whether a lesser offense instruction should be submitted to

a jury than it is to defendant’s direct challenge of a jury’s verdict.

5 Noor is not the only recent decision in which a panel of this Court seems to disregard the

supreme court’s admonishment regarding Mytych. See State v. Hall, 2019 WL 5885081, at *3 (Minn. App. Nov. 12, 2019) (“Although the supreme court subsequently acknowledged

that [Mytych] is not a typical application of third-degree murder… we nevertheless find the

supreme court’s analysis in Mytych persuasive”), review denied (Jan. 29, 2020).

22

When an appellant challenges the sufficiency of the evidence used to convict him,

the appellate court “reviews the evidence in the light most favorable to the verdict to

determine if the evidence was sufficient to permit the jury to reach the verdict it did.”

Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017). The relevant standard of review

depends on whether the factfinder reached its conclusion of law based on direct or

circumstantial evidence. State v. Harris, 895 N.W.2d 592, 598 (Minn. 2017). Both

circumstantial and direct evidence are given the same weight, but a conviction based on

circumstantial evidence requires a higher level of scrutiny. Bernhardt v. State, 684 N.W.2d

465, 477 (Minn. 2004). The Court utilizes a two-part test in its analysis, requiring it to: (1)

identify the circumstances proved by the State, with deference to the factfinder’s

acceptance of the State’s evidence and rejection of any evidence in the record that is

inconsistent; and (2) “determine whether the circumstances proved are consistent with guilt

and inconsistent with any rational hypothesis other than guilt.” Loving, 891 N.W.2d at 643.

When reviewing whether a lesser offense instruction should have been submitted to

a jury, however, this Court must determine whether the trial court abused its discretion in

granting or denying the instruction. Zumberge, 888 N.W.2d at 697. Likewise, as shown

supra, this Court reviews the denial of a pretrial motion to add an additional charge against

a defendant for abuse of discretion. Baxter, 686 N.W.2d at 852. Thus, the Court’s review

of the district court’s denial of the State’s pretrial motion in this case involves the same

standard of review that this Court uses when determining whether submission of a lesser-

offense instruction to a jury was properly denied.

23

Similarly, when determining whether a new charge is appropriate, or whether

probable cause exists to sustain the charge, a district court must determine whether the

evidence before it presents “a fact question for the jury’s determination” on each element

of the crime charged. State v. Lopez, 778 N.W.2d 700, 704 (Minn. 2010). In the same vein,

when determining whether a lesser-offense instruction should be submitted to a jury, the

district court must decide whether “the evidence provides a rational basis for convicting

the defendant of the lesser-included offense.” Zumberge, 888 N.W.2d at 697. “In

Minnesota, every lesser degree of murder is an included offense.” Id. (citing Leinweber,

228 N.W.2d at 125).

Here, the State moved the district court to amend the Complaint to reinstate or add

the lesser offense of third-degree murder (Respondent has already been charged with

second-degree murder). The district court exercised its broad discretion to deny the pretrial

motion, concluding that the evidence does not present a fact question—i.e., there would be

no rational basis on which to convict Mr. Chauvin—on each element of the crime charged.

This case, therefore, is procedurally distinguishable from Noor and far more similar to the

Hanson-Stewart-Wahlberg-Barnes-Zumberge line of supreme court jurisprudence.

In the pretrial motion at issue here, the State sought to reinstate or add to the

Complaint a charge of third-degree murder—perpetrating an eminently dangerous act and

evincing a depraved mind, in violation of Minn. Stat. § 609.195(a). As shown supra, under

the Hanson-Stewart-Wahlberg-Barnes-Zumberge line of cases, “[d]epraved mind murder

cannot occur where the defendant’s actions were focused on a specific person.” Barnes,

713 N.W.2d at 331 (citing Wahlberg, 296 N.W.2d at 417 (Minn. 1980)) (emphasis added).

24

Importantly, under this line of cases, when determining whether a charge of third-degree

murder is sustainable or an instruction should be submitted to a jury, the district court looks

to a defendant’s actions—not his intent. Thus, where the actions are apparent from the

available evidence, as here, the court need look no further. If the actions were clearly

directed toward a specific person, a third-degree murder charge cannot be sustained.

As the Minnesota Supreme Court explains, “We have made clear that the statute

covers only acts committed without special regard to the effect on any particular person or

persons.” Zumberge, 888 N.W.2d at 698. “[T]he act must be committed without a special

design upon the particular person or persons with whose murder the accused is

charged.” Id. (appellant’s claims that he shot “toward” not “at” the decedent precluded a

third-degree murder instruction) (citation omitted) (emphasis added). Third-degree murder

is reserved to cover cases where the act was committed in a “reckless or wanton manner,”

with the “knowledge that someone may be killed and with a heedless disregard of that

happening”—such as firing a gun into a bus or driving a vehicle into a crowd. See, e.g., 10

Minn. Prac., Jury Instr. Guides—Criminal, 11.38 (6th ed.); Wahlberg, 296 N.W.2d at 417.

This is simply not the case here.

The State has made no attempt to allege facts demonstrating that Mr. Chauvin’s

actions were directed generally and not specifically toward George Floyd. The probable

cause statement in the Complaint only states that Respondent “placed his left knee in the

area of Mr. Floyd’s head and neck” and remained in that position. Evidence shows that Mr.

Chauvin had used the same type of restraint previously without causing injury or death. A

law officer’s restraint of a resisting arrestee is a far different type of act than an officer’s

25

discharging of a firearm into a darkened alley. As alleged by the State, Mr. Chauvin’s acts

were neither reckless nor wanton.

Moreover, there is no evidence that anyone else in the vicinity of the incident was

concerned for their own safety, as demonstrated by the crowd gathered on the sidewalk and

on the street. At the time of the incident, Mr. Chauvin was discharging his lawful duties as

a licensed peace officer in the State of Minnesota. In light of the circumstances into which

he entered—a large, muscular man actively resisting arrest by two other MPD officers—

the force Mr. Chauvin used to restrain Mr. Floyd—a body weight restraint—was

authorized and justifiable. Under these facts, Mr. Chauvin’s actions were neither wanton

nor reckless, evinced no knowledge that someone may have been killed, were directed

toward no one but Mr. Floyd, and could not have resulted in harm to any person other than

George Floyd. See Stewart, 276 N.W.2d 51 (Minn. 1979) (where victim was shot twice,

and no bullets fired at anything or anyone else, and no other person in the vicinity was

concerned for their own safety, trial court did not err by refusing to submit third degree

murder to the jury). Again, “[t]hird degree murder cannot occur when the defendant’s

actions were focused on a specific person.” Zumberge, 888 N.W.2d at 698 (emphasis

added). It cannot occur. The State’s version of the facts demonstrate that Mr. Chauvin’s

alleged actions were specifically focused on George Floyd. Applying the supreme court’s

unqualified holding, third-degree murder could not have—in fact, did not—occur in this

case.

Neither the State’s version of the facts nor the evidence it has presented can sustain

a charge of third-degree murder against Mr. Chauvin under Minnesota law, as defined by

26

the Hanson-Stewart-Wahlberg-Barnes-Zumberge line of cases. The district court did not

abuse its discretion in denying the State’s pretrial motion to add or reinstate a charge of

third-degree murder against Mr. Chauvin.

Noor is also inapposite and inapplicable because it is factually distinguishable from

the present case. In Noor, the defendant discharged his weapon inside a squad car, across

the body of his partner, firing through the vehicle’s lowered, driver-side window, and into

the dark toward an unidentifiable and unidentified “silhouette.” Noor, Slip. Op. at 4. He

did so just after a bicyclist passed in front their squad car. Id. Noor’s actions may have been

focused on the “silhouette,” but his act may also have endangered his partner, the bicyclist,

the silhouette, which may have been a child and was, in fact, an innocent, unarmed woman,

and anyone else who may have been present in the darkened alley. Clearly, discharging a

firearm into the darkness strongly implies “knowledge that someone may be killed.”

Because it was not clear that the “silhouette” was, in fact, a “specific” person, a pretrial

charge of third-degree murder could arguably have been sustainable in Noor. Whereas,

here, Mr. Chauvin’s actions were clearly and unmistakably directed toward no one other

than George Floyd, and his use of a common law enforcement body-weight restraint in no

way implied “knowledge that someone may be killed” by his actions.

The State’s version of the facts make clear that Mr. Chauvin’s actions were directed

toward no person other than “the particular person whose death occurred”—Mr. Floyd.

Because the facts of this case do not sustain a charge of third-degree murder, the State has

failed to meet its burden of proving clearly and unequivocally that the district court abused

its discretion when it denied Appellant’s pretrial motion—or in relying on the Hanson-

27

Stewart-Wahlberg-Barnes-Zumberge line of supreme court precedent to reach its decision,

rather than this Court’s Noor opinion.

In fact, permitting the State to use this Court’s novel interpretation of the third-

degree murder statute in Noor to charge Mr. Chauvin for an act that occurred several

months before the Noor opinion was released may well violate the ex post facto clauses of

the United States and Minnesota Constitutions. U.S. Const., Art. I, § 10; Minn. Const., Art.

I, § 11. An ex post facto law applies to events occurring before its enactment, and

disadvantages the offender affected by it. Weaver v. Graham, 459 U.S. 24, 29 (1990). An

ex post facto law (1) criminalizes conduct that would not have fallen under the law when

it was committed; “(2) increases the burden of punishment for a crime after its commission;

or (3) deprive[s] one charged with a crime of a defense that was available when it was

committed.” State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995), review denied

(Minn. Jul. 20, 1995) (citing Collins v. Youngblood, 497 U.S. 37, 52 (1990)) (emphasis

added). A new interpretation of existing state law can result in an ex post facto violation.

See Stephens v. Thomas, 19 F.3d 498, 500 (10th Cir. 1994). “When a state law has been

applied using different interpretations, the proper query into an ex post facto challenge is

whether the current interpretation was foreseeable.” Id. “This analysis comports with the

Supreme Court’s pronouncement in Weaver that ‘lack of fair notice’ is a critical element

in ex post facto relief.” Id. (quoting Weaver, 450 U.S. at 30). Thus, violation of the ex post

facto prohibition in the present case would also result in a due process violation.

Here, at the time of George Floyd’s death, as shown supra, decades of third-degree

murder jurisprudence had clearly established that “[t]hird degree murder cannot occur

28

when the defendant’s actions were focused on a specific person.” Zumberge, 888 N.W.2d

at 698. Such jurisprudence was sufficiently clear that, when Mr. Chauvin asserted that his

act was focused toward a single person, the district court dismissed the count alleging third-

degree murder. The law was sufficiently clear at that time that the State did not appeal.

This Court’s interpretation of third-degree murder law in Noor differs

fundamentally from the line of supreme court decisions in Hanson, Stewart, Leinweber,

Wahlberg, Barnes, Zumberge, and even Hall. This Court’s interpretation of the law in Noor

was not foreseeable on May 25, 2020. It was also not foreseeable that this Court would

forgo the last fifty years of supreme court decisions and reach back to 1898 (Lowe) and

1972 (Mytych) to render its opinion in Noor. Allowing the State to use this Court’s

interpretation of third-degree murder law in Noor would deprive Mr. Chauvin of a defense

that was available to him when the offense herein was committed. Permitting the State to

recharge Mr. Chauvin based on this interpretation would, thus, violate the ex post facto

prohibitions of both the United States and Minnesota constitutions and, thereby, Mr.

Chauvin’s right to due process.

CONCLUSION

Based on the foregoing, Respondent respectfully requests that this Court affirm the

district court’s denial of Appellant’s pretrial motion.

29

Respectfully Submitted,

HALBERG CRIMINAL DEFENSE

Dated: February 26, 2021_________ /s/ Eric J. Nelson___________

Eric J. Nelson

Attorney Reg. No. 308808 7900 Xerxes Ave. S., Ste. 1700

Bloomington, MN 55431

(612) 333-3673

Attorneys for Respondent

30

CERTIFICATION OF BRIEF LENGTH

I hereby certify that this brief conforms to the requirements of Minn. R. Civ. P. 132.01,

subds. 1 and 3, for a brief produced with a proportional font. The length of this brief is

8,258 words, excluding the tables of contents and authorities, as well as the addendum.

This brief was prepared using Microsoft Word for Office 365.

HALBERG CRIMINAL DEFENSE

Dated: February 26, 2021_________ /s/ Eric J. Nelson___________

Eric J. Nelson

Attorney Reg. No. 308808

7900 Xerxes Ave. S., Ste. 1700 Bloomington, MN 55431

(612) 333-3673

Attorneys for Respondent