State v. Clark

qualified immunity But the may partial afforded It be that a solution is found section 145.63 likely is to be of little changes com- confidentiality to these and im- peer participant. fort review Under munity provisions. perhaps part Or of the statute, a negligent-credentialing plain- may solution lie in revisiting the creden- tiff must peer demonstrate review tialing machinery. It is also worth noting organization did act based on a reason- negligent-credentialing actions are a able belief or make reasonable efforts to very piece larger small in a much puzzle, ascertain the facts—but failure to exercise malpractice litigation, medical is always reasonable care is the basis aof possible best route to reform runs See, negligence e.g., action. v. Funchess through larger present issues in the Corp., Cecil Newman 632 N.W.2d 674 medical malpractice debate. But whatever (Minn.2001) (Second) (citing Restatement suggested improvements surface, might (1965)). § of Torts In order to recov- place to address these issues is er, therefore, a negligent credentialing legislative executive and branches our plaintiff prove would need to that the peer government, an I exercise would encour- review organization’s decision was unrea- age forthwith. even in sonable absence Minn.Stat. § statute, 145.63. With without the ANDERSON, PAUL H. (concurring). negligent-credentialing case will most like- join I in the concurrence of Justice Bar- ly proceed summary least judg- ry Anderson. stage, ment as the reasonableness of peer organization’s review decision will not

generally disposed be of on pleadings

but require discovery will expert testi- mony. It is therefore not clear to me what

section 145.63 accomplishes, other than preventing negligent-credentialing and pri- vileging from turning liability into strict

torts. Minnesota, STATE Respondent, An response obvious would strengthen v. immunity provision and im munize peer review participants from lia Courtney CLARK, Appellant. Bernard bility to patients peer unless the review organization performed No. A06-1765. its duties reckless ly or with malice. But for those who Supreme Court of Minnesota. argue, here, as the appellant does that the prospect of a negligent-credentialing claim Sept. hospitals forces up shore defective cre dentialing procedures, a stronger immuni

ty provision may discourage peer adverse review decisions. argument advanced

by appellants essentially that “institu tions and individuals responsible held

injured patients failing perform ef peer fective diligent review will be more policing profession taking correc Scheutzow, tive actions.” supra, at 56. trial question. the date

B.B. on largely with his testimony was consistent during the third interview and statements B.B., testimony directly to the opposed appeal, primary witness. On the state’s court that the district erred argues it admitted the grounds when on several admitted, interviews when recorded Defender, Stuart, State Public John M. prior purposes, for substantive Maravigli, Assistant State Public Paul J. for criminal sexual conduct. We conviction MN, Defender, Appellant. Minneapolis, affirm. General, Swanson, Attorney Susan Lori Courtney Clark was Bernard Appellant Attorney, Gaertner, Ramsey County Ramsey County for the murder indicted in Ramsey Ragatz, Assistant R. Thomas attempted murder Rodney Foster MN, Paul, for Re- County Attorney, St. girlfriend, pleaded B.B. of Foster’s spondent. indict- counts of the guilty eight all subsequently tried be-

ment.1 Clark County jury, and B.B. was Ramsey fore a primary the state’s witness. Testimony B.B.’s OPINION only known B.B. testified she had H„ ANDERSON, Paul Justice. days of the date of for a few Clark Saturday, July Foster’s murder — Courtney Clark was convicted Bernard Saturday, days Foster Several before Rodney County murdering Ramsey did not have a home learned that Clark to murder Foster’s attempting and Foster apart- stay Clark to at Foster’s and invited B.B., or at- committing girlfriend, while time Foster’s spending ment.2 While robbery, aggravated to commit tempting observed apartment, apparently Clark criminal sexual conduct. kidnapping, and dealer, “Taboo,” packaging drug Foster’s trial, At the state introduced over selling heroin Fos- heroin for sale and objection inter- three recorded high getting time spent ter. Clark also police. In Clark and the views between drugs on that Foster with and B.B. Foster interviews, de- and second Clark the first gave him. charged offenses. involvement nied apart- interview, alone in the ty- B.B. and Foster were admitted In the third Clark living in the watching a movie robbing ment and B.B. and Fos- ing up Foster and Clark, Saturday Fos- “by early room on when ter, he stated that Foster died and interviews, roommate, friend the roommate’s ter’s and During all three accident.” 3 a.m. approximately D.T. arrived at relations with having denied sexual Clark 609.16, 1(1); 609.185(a)(2),(3); subd. §§ charged with Clark first- 1. The indictment (2006). committing attempt- 609.17 degree while or murder robbery, kidnap- ing aggravated to commit approximately second-degree ping, or criminal sexu- moved in with Foster or first- 2. B.B. conduct, second-degree murder. intentional before Foster's and two months al however, Foster, use de- attempts simplicity, we respect and interest murder apartment” and scriptions "Foster’s such as each of these four crimes to commit "Foster's bedroom.” respect B.B. See Minn.Stat. ankles, vaginally roommate and D.T. left soon thereafter. to her raped her for eventually Clark asked Foster for some approximately rape minutes. When the over, heroin. When Foster told Clark he did was B.B. saw Clark a carry condom any, angry. Clark became At into the bathroom. She then heard him request, Clark then took seat on Foster’s flush turn the toilet and on the water. the couch and continued converse Clark returned with a washcloth and asleep Foster. B.B. testified that she fell genital scrubbed B.B.’s area. He then talking. Clark while Foster and were bathroom, went back to the ran some wa- ter, and returned again. with the washcloth standing B.B. awoke to see Clark over time, After he B.B. a washed second Clark gun, telling get her her to on her with a pulled up pants B.B.’s and dressed himself. put stomach and her hands behind her Foster, back. then Clark ordered who next Clark turned B.B. onto her stom- side, lying get his left on his ach on posi- the air mattress. From this stomach. Clark bound B.B.’s wrists and tion B.B. see protrud- could Foster’s feet feet, and point placed at some sock ing laundry bag floor, from on the which her mouth. B.B. was unable to see Foster caused her to panic. Clark then told B.B. deduced, but she based comments Fos- said, that Foster was dead and “Now it’s Clark, ter made to that Clark had also grand time for the finale.” proceed- Clark bound then Foster’s wrists. Clark asked ed to place kneel over B.B. and to and hold drugs money where the were located. plastic bag over her head. He told B.B. Clark Foster told he would find the items “lj]ust go.” Although breathe and let in Foster’s bedroom. Clark went to Fos- gagged, B.B. was still bound she was drugs ter’s bedroom and returned with able to free left her hand and tear the bag money. face, point off her at which Clark became thereafter, angry and swore at her. A

Sometime minute so carried B.B. later, from living up, room into the bathroom stood looked out the win- dows, and left snorting her on the started heroin. bathroom floor Short- ly thereafter, he dark. B.B. testified that offered B.B. some crack she could hear by removing Clark cocaine the moving apartment gag placing around the and a lighted searching pipe crack through papers and clothes. Af- her mouth. After hours, B.B. pipe, replaced ter three a smoked the about she heard Clark the muffled Foster, cry wrists, gag, from rebound her apparently up who had re- and rolled her in the some bed living mained room. Soon sheets. thereaf- ter, briefly Clark entered the bathroom B.B. Clark try observed without success B.B. everything reassure “that going was body throw Foster’s the out bedroom all right.” dragged body window. Clark then the out Clark returned to the ultimately bathroom several of the bedroom. B.B. heard a said, “Foster, you shut, minutes later and do door in the apartment then Foster’s white, care if I your fuck bitch?” B.B. heard no vehicle—a SUV-type being truck — response said, from Foster and then squealing Clark started and a of tires. Five to * ** you “Did later, hear that? He doesn’t seven Clark minutes returned to the dragged care.” Clark apartment. then B.B. into Fos- unwrapped He B.B. un- and her, ter’s bedroom he placed where still bound her feet and hands. He then forced gagged, bound and on on an air apartment her back B.B. to the leave with him- and partially mattress. Clark then removed threatened to kill her mother and children. his clothing pajama threats, and pulled pants B.B.’s At the time made these the in a license, which she saw Clark leave scene white B.B.’s driver’s holding was truck. where her mother and the address listed

children resided. the A forensic from Minnesota scientist Apprehension Bureau of Criminal testified apartment the B.B. entered build- When DNA not found on evi- was Clark, ing hallway neighbor she a saw scene, seized crime dence from the includ- neigh- recognized. passed she As she sheets, washcloths, ing bed a condom bor, words me.” “Help B.B. mouthed the bedroom, wrapper the semen found walking, B.B. fol- neighbor kept and wearing stains B.B. was be- pants apartment building. Clark out of lowed B.B.’s rape, fore and after the and driver’s B.B. recognized whom were people Some license. The scientist also testified that building. stairs of the on the front sitting on biological Clark’s DNA was not found contact with of them as eye She made one samples from taken B.B. SANE truck, she to Foster’s which followed Clark nurse. building’s driveway. A was parked they Several witnesses testified saw neighbor building came out of the and then Clark in Harriett area of Minne- the Lake B.B., and B.B. followed Clark apolis morning day— on the next truck, neighbor grabbed reached Sunday, July of these 17. One witnesses Clark, arm and said “She doesn’t B.B.’s parking saw Clark in lot near Lake to with B.B. go you.” look like she wants building, looking Harriett lost concessions building. then and ran back into the turned or confused. This witness observed Clark through B.B. that she ran testified standing yards from about white building’s hallways and third floor second truck, only vehicle which was the every apartment door as knocked witness, parking lot that time. Another anyone waiting she if by, ran see area, who resided in the testified that ultimately admit- would answer. She driveway into his Clark drove a white SUV one apartment, ted into a third floor neighbor. yard and onto the While occupants apartment’s called talking Clark, the witness Witnesses State Other house said neighbor emerged from her police. Clark then that she had called the A Nurse Assault Examiner Sexual in the One of sped from the scene SUV. (SANE nurse) examined in the who B.B. testified that visited Clark’s cousins July 16 early afternoon on testified Sunday, driving he was her discharge bloody she on B.B.’s cer- found truck had never known him white that she vix, injury suggesting an consistent to drive. The cousin noticed Clark A rough or sexual intercourse. forced money” “a nice had of than amount —more staying daughter with her woman who was carry. she had ever seen Clark building in time apartment the Foster’s County A officer tes- that she Washington of the murder testified saw B.B. later, the early in mouthing tified that one week leaving with Clark July Clark ar- daughter morning woman’s hours of was “Help me.” The words wagon a per- rested after he drove station that she and several other testified wrong highway on a exit steps gathered sons were front direction over for the building ramp pull saw failed apartment when she then ultimately into morning crashed some emerge police. B.B. Clark Clark and was taken July daughter large 16. The said she told cement barriers County Enforcement go. Ramsey B.B. She Law Center. Clark to let also said A Minneapolis police officer testified played jury for the an audiotape of the during evening first interview and videotapes of the sec- responded indicating radio call ond and third interviews. body that a had been discovered near interview, first During the Clark showed some tracks in railroad southeast Minne- surprise on learning that Foster was dead. apolis. body ultimately The identified acknowledged that he was in Fos- responding Foster’s. Two of the offi- apartment ter’s persons several other they cers testified that observed beaten- night murdered, on the Foster was but he vegetation body, indicating down near the vehemently denied that that a had driven in the he assaulted Fos- vehicle area. ter or that he witnessed assault A pathologist forensic with the Henne- against Foster. Clark asserted that he did County pin Medical Examiner’s Office tes- sex night, not have with B.B. that and that tified body partially that Foster’s bur- he had not driven truck Foster’s after ied pile “clearly under a of fresh dirt that During interview, didn’t Foster died. belong part there” and was second landscape. body native was Clark told the officers that sawhe a mutu- “packaged” laundry bag in a plas- and two acquaintance during al “snap” argu- tic bags ligature covered Foster’s A head. ment with Foster and choke Foster head, surrounded Foster’s holding gag in death. He said he did not know that place, ligatures and other bound his wrists had up. Foster been tied He admitted and ankles. The pathologist jury told the driving away Foster’s truck from the that in his opinion, Foster’s death awas apartment after the murder but denied homicide. He said Foster died of body that Foster’s inwas the truck. asphyxia, which could have been caused interview, During the third Clark ulti- placing someone bags over Foster’s head mately or obstructing pharynx. admitted tied up that he gagged up Foster and tied B.B. order to A University of Minnesota botanist testi- drugs. rob Foster of his Clark denied fied plant that four fragments obtained intending kill Foster and said that Fos- from the undercarriage of Foster’s truck accidentally ter died from a heart attack or fragments were of species present at the drug overdose gagged after Clark body scene where him. Foster’s was found. The botanist said that Clark said placed plastic two of the that he bag four species are not commonly found over Foster’s head after he knew that Minnesota. part southern Foster had interview, died. Later in the Clark stated that plastic bag was inad- Recorded Statements vertently caught up with body Foster’s Sergeant Frazer, St. Paul Police Steven wrapped when it was laundry bag. primary case, investigator on Foster’s a person said that named “Boo”3 regarding testified three interviews he persons “disposed and other of’ Foster’s conducted with Clark after Clark was ar- body. He said he did not know where July rested —two on and one on body Foster’s was again taken. He denied 3. Frazer said that he conducted the inter- having together placing views sex B.B. or a bag over Minneapolis Police Of- Doran, Finally, ficer for leaving Michael her head. he whom Clark had admitted worked as a paid informant. The apartment state Foster’s truck. persons. Boo and are Taboo different up stated that after he tied Foster Testimony Clark B.B., drugs. for began searching and he own Clark on his behalf. Clark testified He then carried B.B. to Foster’s bedroom stayed overnight at Foster’s that he said to be signaled after she she wanted and in- nights before several apartment slipped ligatures B.B. out of the moved. July began staying there cluding 16. He bedroom, was in the and Clark once she apartment

when realized that Foster’s he then told not retie her. B.B. Clark did drug-related certain hub for had become drugs. ultimately where to find Clark paid help being that he was activities four of cocaine and ob- bagged kilograms using He investigate. Officer Doran acquaintance from an of Ta- tained ride during period, partly drugs time left, He that when he Taboo boo’s. said persons un- raising suspicions avoid brought apartment. at the Clark still investigation. der and drugs to a Ross Street residence Clark, According roommate Foster’s apartment returned to Foster’s about apart- Foster’s brought and D.T. Clark to later, at around 6 or 7 a.m. The minutes early during morning hours stay, ment gave a ride did not person who Clark left, they eventually at which but after apartment shortly Taboo and left point was alone with Foster Clark returned. Clark drugs, but Clark asked Foster for B.B. in an effort to “check Clark testified that on the Clark then sat Foster refused. face, Foster, slapped he Foster’s but on” “had words” with Foster. couch and then did not move. Clark said he Foster morning, Clark Sometime later Clark sat realized that Foster was dead. into bedroom. Clark B.B. walked Foster’s hour approximately a half and cried heroin in grams of approximately saw done. thinking about what he had while bedroom, told him about co- and B.B. B.B., been in the then told who had Clark apartment. in the caine located elsewhere high, apartment getting what back of the keys gave B.B. Clark the had occurred. that he then decided to Clark testified could drive to a Foster’s truck so Clark apartment drugs Foster’s take the to call Boo.4When public telephone part set-up. of a He believed later, minutes he found returned 15 he motivate “stealing” drugs, would ran- B.B. had tried to “make the house him with some pursue Boo and others apart- Boo at Foster’s sacked.” arrived Ta- guns that Doran wanted to confiscate. a.m. with two men Clark did ment at 8 or 9 time apartment boo was Foster’s would “take not know. Boo told Clark he Ta- drugs, to take the Clark decided initially he things. Clark said care of’ planning to do. boo knew what Clark was something apart- helped look for used a kitchen knife to threaten in,” body] but he “put [Foster’s ment to up gagged Foster and B.B. He tied help, and he upset too then became Foster, up B.B. to “make and also tied apartment of the went to the back he did good look for Foster.” Clark said B.B. any guns during the incident. not have later, went sometime he Clark said that He also said he told B.B. beforehand and when he B.B. did to use the bathroom drugs, planned steal appar- and he had gone, Boo was stop emerged, him. attempt Taboo, exchange subsequent phone.” between initially testified that he called 4. Clark later, lawyer that Clark confirms Clark and he said that he "had but moments say keep pick up his meant "Boo." calling Boo for him to ently body taken Foster’s with him. Clark He he give said did not all of the and B.B. then apartment together. left the details August on 3.that he gave to the When Clark and B.B. reached jury Foster’s because of the instruction he had truck, changed B.B. her mind and walked from Doran regarding received Doran’s apartment building back to the after investigation. Clark,

neighbor said to “She don’t want- to State’s Rebuttal Witness with go you.” asking After if B.B. she was rested, After the defense the state called stay sure she wanted to seeing and B.B. Doran its sole rebuttal witness. Doran down,” “breaking start Clark drove to the confirmed that Clark worked for him aas Ross Street residence alone. He then paid informant in the summer drugs moved the from that residence to The last time Doran had contact with Minneapolis home that Doran had previ- July Clark before Foster’s murder was on ously drugs searched. He left the at the his and first contact with Clark after Minneapolis home and then pub- went to a the murder at Ramsey County was lic telephone to call Doran. Doran not did (LEC) Law Enforcement July Center telephone, answer his but Clark did not 26. Doran he said did not speak with leave a message hap- because had what Clark his cell before he and Frazer pened was “too serious.” interviewed Clark. Doran indicated that Clark testified that he drove into the all with conversations Clark after Foster’s yard of the residence near Lake Harriet murder place presence, took in Frazer’s July 17 in being order to avoid caught except for the few minutes which Doran by some men who chasing were him be- and Clark during were alone August drugs cause of the he had stolen. He then interview and September a later interview park drove to the Lake Harriet area to use that was not previously discussed trial. pay telephone to call a cousin. When he Clark’s Motion Suppress Statements told cousin what had happened, to the Police him, already cousin told “I know. I[saw] on the news.” The cousin drove to Lake Before began, Clark’s trial he moved the give ride, Harriet to Clark a Clark left suppress district court to the statements Foster’s truck in the parking Lake Harriet during he made his interviews with Frazer lot. on July Doran August 3. Clark

Clark lied said he to the argued when he that when he made the statements interviewed on 26 because he was he was mentally incapacitated aas result going through withdrawal, withdrawal sickness and therefore, be- of heroin he did Doran, cause speak only he wanted to knowingly, not voluntarily, intelligent- Clark, According not Frazer. ly Doran rights waive his to remain silent and to had him visited in his lawyer cell before the first have his present. He argued also interview and had instructed him not to that his statements were the product of investigation coercion, about in which and that the state violated his serving paid as a informant. Sixth Amendment to counsel and our he said told the truth spoke respectively when he case law interviewing him during Doran alone 3 without lawyer present and without interview. He said that he did lawyer. not intend sufficient notice to his The court Foster, kill did place bag pretrial over conducted a hearing on Clark’s him, Foster’s head and suffocate and he testimony motion and heard from several did not have sexual relations B.B. witnesses. office “aware of the situation.” Balck July

First 26 Intervieto that he could not remember testified July place 26 took The first interview speaking July to Frazer on but that arraignment the LEC before Clark’s at every request by he about a time learned 40 minutes. approximately for and lasted he speak police, Clark to with the “contact- by counsel. yet represented not Clark was ed, attempted to at or contact” someone interview, Frazer and of the At start office. public defender’s signed Miranda waiver Doran obtained initials from Clark wrote his form Clark. Handley, appointed Tom who was form, four on the points next each of arraign- at public defender his Miranda indicating that he understood spoke hearing, ment testified he with although said that Clark Frazer rights. telephone day on the of the ar- Balck drug in a withdrawal state appeared to be day. Handley next said raignment interview, completely during he was this conversation, during this he told timely with his answers. appropriate practice Balck that it would “be better the first in- that before Clark testified Clark, speak to Mr. [have officers] not him visited July Doran terview just any [legal] problems avoid down [to] him 10 minutes and told cell for about his might Handley said that Balck the road.” as a anyone his work discuss with arraign- day him on of the have told Clark said that informant. confidential speak with police planned ment that your attorney. I him “I’m Doran also told Clark. attorney. than your prove can better [sic] Doran met with Clark Frazer and next telling you to do what I’m do.”

Just arraignment. The interview after Clark’s said he would “take stated that Doran also 50 minutes and be- approximately lasted interpret- everything,” care of which Clark gan following exchange: with the help in some promise as a “to [him] ed you paper Do Frazer: remember this way.” kind of rights on it your we went over Interview Second earlier? point after testified that some Frazer Yeah. Clark: ended but before Clark the first interview you arraigned, you Clark told LEC staff us to talk Frazer: And asked time, after with the officers You to talk to right? he wanted want arraignment. Frazer said us? request, of Clark’s he time he learned Yeah. Clark: lawyer appointed had knew that a been thereafter, Shortly Frazer reviewed therefore, had represent Clark signed Miranda waiver Clark conduct- procedures before follow certain following day, ending with earlier that Frazer contacted ing another interview. statements: Attorney Ramsey County Assistant have the talk to Frazer: You pro- Balck for advice on how Charles lawyer to have the lawyer and that he would Balck told Frazer ceed. you If you during questioning. get public defender’s office contact lawyer one will be subsequently cannot afford a Balck con- back Frazer. you you may remain arraignment appointed Frazer before the tacted you have talked to law- offi- until hearing told him that the silent ended and rights] yer. [these if You remember speak with Clark Clark initi- could cers we talked? from earlier when public defender’s contact because ated just Yeah. I talked to him. drug withdrawal, Clark: He’s where” as a result of pissed off. that he brought asked be back to his arraignment

cell after the hearing. He to, to, said he did not ask nor he did want Having rights Frazer: these in mind are speak to the officers second time that you -willing you to talk to us like asked day. only right He said that he us waived his downstairs— * n * during remain silent the second inter- Yeah my Clark: now [b]ut * n * speak view in order to with Doran about I right. gotta get mind ain’t * * * 1 n their earlier conversation in Clark’s cell. some coming detox. man. stronger stronger, Leading S up August Events Interview Frazer then if asked Clark wanted him day, Frazer testified that the following to check on the nurse’s whereabouts. July messages he received voicemail assented, Clark and Frazer inter- left from indicating LEC staff that Clark request view to medical treatment speak wished to him and Doran. absence, During Clark. Frazer’s brief Balck, Frazer contacted who him told Clark continued to volunteer information lawyer needed be be- contacted to Doran about Clark’s involvement any fore interviews. Balck instructed case. Foster’s (1) Frazer to inform Clark that the state returned, When Frazer he resumed having reaching trouble law- questioning Clark. Toward the end of the (2) yer, Handley; Tom Clark should interview, Frazer told Clark about evi- try Handley. telephoning Frazer testified dence that contradicted or undermined that Balck told him the officers were not to Clark’s account of the case. Clark then again interview Clark until Handley re- stated, “Let me this get do here. Let me ceived notice and called Frazer back. ya’ll dried out. Call I back. ain’t ‘Cause LEC, Frazer then visited Clark at feeling it.” conversation, After some brief information, conveyed the above and con- Clark restated to “get his desire dried firmed that Handley’s Clark had phone thereafter, out.” Soon the interview ended During number. meeting, Clark with Doran stating Clark would have asked Frazer if Frazer could “tell [him] to contact the if officers to talk wanted something off the record.” Frazer de- to them again because the officers could speak clined to about investigation not initiate further conversations. Af- told that he Clark needed to contact his room, ter the officers left Clark lawyer before he and the could com- yawned lay down the floor. When municate. Frazer returned to the room a few minutes later and asked doing, what Clark was meantime, In the public defender’s Clark said that he was “stretching out” office had reassign decided to Clark’s case and that his symptoms were than worse Handley from lawyer. another Connie they request, were before. At Frazer’s Iversen, a supervisor charged with reas- up Clark stood off the floor and seated case, signing Clark’s testified she himself a wheelchair. Frazer assured day July learned late in the 27 that Clark that nurse would be available Balck had telephoned say that Clark shortly, and he wheeled Clark out of the wanted to police. Iversen interview room. yet had reassigned the case when she the pretrial testified at hearing learned Balck’s call. Because Iversen that on vomiting “every- he was knew that the LEC would for dinner close reopen, for it to she went next door to the p.m., she went to the LEC to service at an- sending than station to tell Frazer that she would speak with Clark rather met lawyer. Iversen said she and that all meeting other soon that likelihood, for at least an hour and with Clark not talk to agree Clark would to meeting, left the Clark did not when she that unable Frazer. Iversen said she was to the Iversen said police. Frazer, want talk to person a at meet with but staff a for Balck later in message that she left police telephoned the station Frazer on her 27, conveying evening July on the ended, telephone behalf. After the call the position. person staff told- Iversen that Frazer did speak to that “he want to her and was not Thursday, July

Frazer testified that on going to come down and talk [Clark] 28, again he received notice that then the staff regardless.” Iversen told speak with him and Doran. wished to person give message Frazer a that he Balck, him who told Frazer then contacted in presence could meet with Clark her on a and had set time for that Balck Iversen July following Friday 29. morning, the Later that officers interview Clark. the day apparently at the time Balck — testified that next returned Iversen she had set—Frazer and Doran ar- Iversen LEC, to the where she was admitted to at the LEC. said that he rived Frazer p.m. at said that speak with Clark 5:30 She Clark was never reached the room where Clark, met with she encountered after she waiting him because Iversen “confronted” hallway area Frazer in LEC and told near that room and told lobby in a area speak him that Clark did not want to with speaking not him that Clark would be rude, that him. She stated Frazer that day. the officers that Frazer said loud, angry, and and that he invaded her that informa- hearing when he insisted on space.” also that Fraz- “personal She said Clark, directly stepped tion from Iversen meeting her she had er asked about him, “basically bump[ed] in front of into Friday, July 29. Iversen suggested [him],” go him not and told that he could think told Frazer that she did not then her client. Frazer stated that near meeting because Clark happen would confrontation with Iversen continued longer just told that he wanted had her no minutes and the same manner for few advice. police talk to the based on her until he told Iversen that her did end after conversation Iversen said that this unprofessional and walked conduct was Frazer, spoke either with Balck she away. message convey that Clark or left him substantially gave a different Iversen speak police. not want to to the did account of the incident with Frazer day, assigned Clark’s following Iversen leading to that incident. up events Iversen had case to Richard Sarette and a message received Iversen said she no further involvement the case. 28, day Balck late on from August that on Frazer testified again contacted the stating that Clark had from LEC staff that Clark wanted heard police speak in an with them. effort to with him and Doran. Frazer speak that Frazer Iversen said she told Balck and him that the then contacted told planned p.m. at 6 to interview Clark through information, officers wanted to schedule a time receiving On this she day. office to interview public defender’s immediately speak went to LEC during Frazer told the court that with Clark. Iversen found the LEC closed Clark. service, and while she waited for dinner 2], day, on [August public August Balck]

whole defender’s office on [he He maybe shortly were contact two or three said that p.m. after 8:40 on times, basically [saying] message he left [Balck] was a voicemail for Iversen trying get message office, “I’m still Handley public defender’s through, right, we want to do this indicating requested we’re Clark had going high this, I’ll take road to the and that “there would know,” you let and that kind of contact with pro- result of the day, gressed to end defendant’s contact.” Balck said he also [Au- 2], gust message [Frazer] had not heard left a after-hours an- answer. But swering definitive Mr. Balck re- the public service for defender’s layed very that Miss Yang, Iversen was frus- office and that an LuNhia on-call wanting lawyer, trated with her client to subsequently contin- contacted him at advice, ue to talk her even after and that home. Balck testified that he received ultimately phone call Yang’s p.m., boiled over into a call at approximately 10:40 when, believe[d], Mr. Yang [Frazer] Balck was but told the court that she talked to time, away office, on his off from the and sending Balck sometime before an e-mail said, “Well, he called and message [Frazer] we’ve to at p.m. Iversen 9:56 Balck said long, just waited this going gave Yang we’re that he the same information he have to until we get thing wait had left in the message voicemail for Iver- ironed out. It going Handley. isn’t happen sen Balck that al- testified today,” 2], meaning [August though and it he was unable reach Iversen or didn’t. Handley directly, did he not instruct Fraz- er to wait to interview Clark on August Meanwhile, Frazer continued receive He could not remember whether either through August calls 3 that Clark wanted Handley or Iversen ever told him that speak police. with the Frazer said he Clark did not wish to to police. Balck, again who contacted stated that he August S Interview again would be in public contact with the defender’s office and that he would be at Starting approximately p.m. Au- * * * setting up a definitive time when gust Frazer Doran conducted their interview, we would have this because third interview with Clark. The interview getting point where he was approximately lasted two hours having a hard time getting answer lawyer present. Clark’s was not Frazer office, out of public defender’s read Clark his Miranda rights the be- basically he told that he was [Frazer] ginning of the interview and obtained a going pick and say time we would signed Shortly thereafter, waiver form. ** * there, lawyer be and their could following exchange occurred: either be there or not at * their choice. * * Okay. Frazer: so Just we’re clear Frazer said he later heard I call got back the Ramsey County from from Balck that “a notification had [deputies you been that said would like to public made defender’s office and talk to again about [Doran] [me] they p.m. were aware of the inter- [9 the case. Is that true? time,” regardless and that view] wheth- Clark: Yeah. lawyer er present, Frazer you you Frazer: And know have a law- proceed with

should the interview. yer assigned you, to this case for right? It is not testimony clear from Balck’s Yeah, whether he made yeah. efforts to contact the Clark: Appeal Conviction and you can you know Frazer: And you you if want- him or her with have guilty eight The of all jury found them, right? ed attempted murder and murder. counts of all court convicted Clark of district Yeah. Clark: except counts the lesser-included offenses to talk to us you’ve And chosen Frazer: intentional second-degree murder here, right? being without them mur- second-degree intentional attempted Yeah. Clark: der, which counts court dismissed. appeared Frazer testified The court then sentenced Clark life beyond the with- “completely moved possibility pa- imprisonment without of in the symptoms” complained he drawal argues appeal, Clark role.5 On this appeared and that he interviews earlier on three grounds the district court erred drugs free of and alcohol. suppress when it refused to the statements police during to the the two made testimony the third inter- about and the 3 interview. 26 interviews given by differed from that view that the state- Specifically, Clark asserts making Specifically, Clark denied officers. suppressed be- ments should been about the request to the officers a (1) symptoms his cause heroin withdrawal up days leading August case the voluntarily waiving him from his prevented smuggled that he had He also testified during July two 26 right to silence the high into the LEC and that he was heroin interviews; (2) his in all three statements during August the 3 interview. product the of coercion or interviews were above, testimony the dis- Based on the interrogation tech- improper otherwise sup- court denied Clark’s motion to trict (3) state niques by police; the and the the during he made press the statements rights Clark’s Sixth Amendment violated July 26 and 3 interviews. 4.2 con- and Minn. R. Prof. Conduct to Admit Clark’s State’s Motion post-arraignment interviews ducting Prior Conviction lawyer. his presence of Clark outside started, Clark’s trial state that the court abused its argues Before Clark also of its intent to introduce it his con- notified Clark when admitted 1994 discretion for impeachment purposes. convictions past several viction for substantive Shortly testify. if purposes Clark chose I. chief, the its case in before the state rested argu We first address Clark’s the district court admit state moved convictions, district court erred when but for sub- ment that the only one of these voluntarily he waived his concluded that purposes specifically, prove stantive — during the two alleged right to remain silent respect intent with Fifth Amendment to hearing on 26 interviews. The argument of B.B. After rape Constitution, motion, applicable to court made state’s the district U.S. Amendment, reading transcript a the states the Fourteenth of agreed allow compelling government from guilty prohibits 1994 pleaded in which Clark State testify himself. person against criminal sexual con- attempted first-degree (Minn.1998). Scott, 412, v. 417 584 N.W.2d duct. 609.106, 2(2) § possibility kidnapping. Minn.Stat. subd. imprisonment of 5. Life without (2006). mandatory parole is the sentence for convic- first-degree tion of murder in course person may A appear physical waive his Fifth Amendment Clark “did not to be in silent, (2) right during interviews; remain such but a waiver distress” Clark must vol knowingly, intelligently, understanding “demonstrated clear (3) Id. questions”; untarily given. (citing, among “appeared willing other Arizona, (4) v. decisions, hours”; Miranda to talk for 384 U.S. Clark’s “own 475, attorneys 1602, never believed was un- [he] S.Ct. 16 L.Ed.2d (1966)). able track and understand deciding what was When whether a defen requested on” going psycho- and never voluntarily dant waived his to remain logical evaluation silent, possible for mental ill- totality courts consider the of the ness. circumstances based factors such age, maturity, intelligence, defendant’s ed Our review of the recorded interviews

ucation, experience, ability to compre provides strong support for the district Linder, hend. State v. 268 N.W.2d findings, including court’s concerning those (Minn.1978). Other relevant factors physical condition. Clark’s inter- include, others, among the lack of or ade action with the at the beginning officers quacy warnings, length and legality each interview that he shows understood detention, of the the nature of the interro the Miranda rights waiving, gation, any physical deprivations, lim we see no evidence to substantiate Clark’s its on access to counsel and friends. Id. his assertion that heroin symp- withdrawal toms in any interfered way substantive Findings fact surrounding a pur Further, cognition or volition. ported Miranda waiver are reviewed while complained about symp- these error, clear legal and on conclusions based during July toms both 26 and interviews those facts are reviewed de novo to deter placed sometimes head his on the table mine whether proven the state aby has during interview, the second he was con- preponderance of evidence that sistently responsive and coherent. defendant waived his Miranda vol rights Burrell, untarily. State v. 697 N.W.2d findings— district court’s factual (Minn.2005). 579, Here, 591 the district clearly which we cannot deem erroneous court made number of detailed factual support the record before a conclu- us— findings correspond Linder fac to the law, sion that our under case volun- Clark tors. The court found that Clark 33 tarily waived Miranda is his rights. Appo- years old and sufficiently intelligent Williams, “to site cases include State v. 535 comprehend questions him, in 277, (Minn.1995), asked N.W.2d 288 in which we legal cluding terminology,” and that Clark identified as relevant the defendant’s ex- is a “mature individual lot with a of ‘street tensive criminal background and concomi- ” smarts,’ whose experience extensive experience justice tant sys- the criminal Blom, justice system the criminal v. began tem; State ado and 682 N.W.2d lescence and prior (Minn.2004), included three felonies. 615 in which we noted that The court also found that although Clark received the defendant was on prescrip- Miranda adequate warnings at the begin drugs, tion there was no evidence that he ning of each acknowledged interview and materially impaired was “spoke when he that he understood his rights, voice, and that a normal freely tone volun- July Clark initiated the second 26 tarily gave inter questions, answers to and was (1) view. Finally, alert, lucid, the court found that cooperative, and calm.”6 part confession, 6. The cited of each of these ad- cases dresses the issue of whether not

333 cases, ing Clark’s confession was volun we hold whether and other light of these tary. example, the court found that err when it con- For did not the district court interviews, his initiated two see voluntarily waived that Clark cluded Blom, July (noting N.W.2d 615 the two during to remain silent interview); initiated the defendant 26 interviews. not poor was held conditions II. Ritt, cigarettes, provided with see was (noting that defendant “was argu N.W.2d at 810 next address Clark’s We interview); freely” during to smoke allowed district court erred when ment that the kept the officers the interviews and that he suppress statements refused short, low-key Thag v. fairly see State the three interviews police during made (Minn.1995) 804, 812 gard, 527 N.W.2d the invol were because these statements relatively (noting that interview of coercion or otherwise untary product short). techniques by the interrogation improper deciding whether defen

police. When found that Clark The district court also involuntary, in courts dant’s statement subjected trickery to threats or conduct, quire “together whether “employ and that did not surrounding with other circumstances atmosphere while inter- improper, coercive coercive, manip so so interrogation, [was] But we note that Frazer viewing [Clark].” ulative, de- overpowering [as so [and] to] during and Doran made several comments ability make privet ] [a defendant] 3 interviews that July wholly autonomous unconstrained implied arguably be characterized as could v. did.” State decision Doran express promises. example, For (Minn.1991). Pilcher, 472 N.W.2d beginning at the first told Clark inquiry totality-of-the-circumstances This 26 that interview overlaps” approach “significantly day you got going the luckiest today’s determining whether defen courts use in ya. you why? And know ’Cause do voluntarily his Miranda dant waived yourself you’re gonna set free. today Williams, at 287. rights. 535 N.W.2d you happened All shit that’s this implied and Courts look with disfavor on done. It’s over. up ’til now—is past dur express promises made day Courtney forward From this —look promises ing interrogation, but such do eye day me in the this forward —from automatically render a statement involun You can your spotless. never future’s Ritt, 802, 808 tary. State v. 599 N.W.2d again you if don’t want to. up fuck (Minn.1999). you Okay? telling what I’m So —man man, today, nothing else will matter. conclu We review a district court’s gonna get all those fuckin’ de- We’re sion to the voluntariness of statement your all that off back. mons and shit de to determine whether the state novo me gonna real with like Okay? You’re totality proved voluntariness based on gonna past, in the and we’re you have of Id. at 808. We the circumstances. today. Okay? deal based on all fac make this determination added). later, imme- clearly (emphasis Moments findings that are not errone tual diately signed Clark a Miranda waiv- Here, made after Id. the court several ous. Clark, form, Doran told er findings factual relevant decid- detailed factors, waiver, to decide both of the Linder voluntary. But courts based on a Miranda is Williams, 535 N.W.2d analysis, these issues. totality of circumstances use a Courtney, interview, days I wish I had two talk Later in Frazer and Do- you. We’ll do as much as can we ran indicated Clark that while a convic- you I want down dig deep now. first-degree premeditated tion for murder every get your let’s fuckin’ demon off necessarily would result sentence said, Okay? Like I no longer back. are imprisonment possibility life without the going anymore. we to live like this parole, “something pre- other than a * * * Courtney right old Clark is dead. As of planned murder Foster —and today—your future is spotless. rape might “get- result [B.B.] now— ” got nothing wrong your You’ve future. out ting prison] Shortly sometime.” [of you your If talk to it in God and find thereafter, Clark asked if he could your get soul now all let’s those to Doran alone 5 minutes. Frazer left your fuckin’ demons off back. Man to room, the interview Doran said: man, okay? you I want to tell what me I know happened. you got what I think happened. the fuck out, you your so whacked lost head. During interview, the second Do- this, You plan you didn’t plan didn’t ran encouraged and Frazer Clark several * * kill—* you But high because were back, “get times demons off’ his but out, you you your were whacked lost neither officer alluded to Doran’s comment C, head. You didn’t plan you this. in the first interview that Clark’s future this, plan didn’t but up it ended “spotless” would be if he told them the way. truth. said, Clark then right,” “That’s which beginning At the of the inter- Doran responded, view, Doran following and Clark had the This is a life—this a life exchange: sentence. if you Now want to tell the real deal— Tonight’s night Doran: it’s all happened tell the real deal—what up. day cleared From this forward cooperate and do right thing and not this, okay? we’re done I don’t tell might lies—there be break in this. keep want to back coming here They might you not give life without talking[;] gonna get we’re this shit parole. tonight. done And then gonna we’re carry our lives. Like I said followed, exchange Doran C, your before spotless— future is premeditated told versus acci starting today, your spotless. future is dental killing was “the difference between Compared Clark: to what? spending [Clark] rest life in [his] C, ya up Doran: can’t anymore. screw prison parole” your with no and “serving * * n Today’s day. Today a good is a good time then having and some form day. tonight And I think your after prison.” later, life after Moments Doran you’re conversation gonna your set again told that Clark if Clark told the free, you’re gonna soul tell exactly me truth, his “spotless.” future would be happened what in your own words Doran, Clark then you gonna asked “What ** * okay? for do me?” Doran he said would do [shaking Clark: yes] head whatever he could and would tell “them” Doran: gonna happen That’s what’s to being that Clark was honest and had not

night that, I feel good and I feel premeditated about Foster’s murder. Clark it, I proceeded otherwise wouldn’t have come give then Doran an account * * n . here largely that was consistent with the testi

335 evaluating at 111-12. In charged. be Id. at trial. Clark mony ultimately gave he we it argument, stated that when Frazer re Slowinski’s this repeated account “improper not be for officers would the room. turned to a of the various de- to inform defendant argument that the Clark has colorable murder,” grees improp- but would be respect comments officer’s they suggest for that had er him future that would await “spotless” county attorney ar- with the influence they poten- were because improper were at We gue for lenient treatment. Id. review of tially misleading. But careful improper sug- nonetheless concluded that transcripts re- interviews the recorded county gestions of influence with the attor- the offi- interpret not veals that Clark did ney not the kind statements that “were promises comments as spotless cers’ future make an innocent man confess.” Id. would Thaggard, See 527 treatment. lenient Here, prom Frazer nor Doran “key” as neither (describing N.W.2d 811-12 charged that with a ised he would be promise an of lenient Clark implied fact that if he to acci less offense admitted the defendant serious treatment did not lead Foster; rather, killing the officers dentally avoid if prosecution he would believe that confessed). told cooperated that if Clark example, For after one of indicated truth, comments, might “there be a break” perceptively, these Clark asked “might pa not life without responded [receive] Doran Clark “Compared what?” added). Further, (emphasis role” while statement that by repeating his earlier that do (emphasis Doran told Clark Doran would “set soul free” Clark could [his] added). he could and would tell “them” of the interviews whatever In context honest, being whole, that state “spotless” future as officer’s convey any not that ment does assurance properly are most and related comments substantially could influence con- officers appeals characterized to Clark’s Clark’s case. See State integrity disposition as im- personal science —not (Minn. Beckman, N.W.2d ex- v. plied promises for lenient treatment 1984) the admission of confes (upholding change for a confession. that despite interrogator’s comment sion suggestions As officers’ brought would be cooperation defendant’s receiving a sentence of could avoid attention). For the to the district court’s parole if he without con imprisonment life reasons, that Fraz we conclude foregoing Foster, accidentally it is killing fessed to comments—while trou er’s and Doran’s distinguish between com important reasonably respects in some bling —cannot potential sentences identifying ments as comments would be construed degrees of imposed for murder different innocent man confess. make an promises a defendant will express contrary also conclude with a lesser offense ex We charged contention, officers did change State v. Clark’s confession. See (Minn. against Clark in Slowinski, improper threats make N.W.2d 1990). Slowinski, to obtain his statement. Near argued effort defendant interview, Frazer July 26 end of the first police used methods obtain coercive you again, talk (1) told that “if don’t they “implied that Clark his when confession * * * gonna proceed have to ahead might we’re by confessing, defendant [the] (2) crime”; people have said about with what other charged a lesser * * * you want that and I don’t think they you “suggested had influence with points during the At other attorney” happen.” county regarding crimes 336

interviews, attempted persuade (noting Frazer 599 at N.W.2d 810 that while the by describing inculpatory Clark to talk interrogation “may unpleasant” been have already emerged evidence that had defendant, for the “there little [was] indi- reasonably emerge could in the officers’ that cation her will in light was overborne” investigation. But Clark argue does not continued of possessing her denial misrepresented that Frazer emerging eventually criminal intent that proved case, evidence in the and we held that trial). at it is not improper interrogators to in- reasons, of the foregoing For all we hold form a of the mar- defendant evidence that district court did not err when it See, Pilcher, shaled against e.g., him. 472 concluded Clark’s statements during N.W.2d at 334. July the two 26 August interviews and the Notwithstanding the case law discussed voluntary 3 interview were and therefore above, Clark contends the combined admissible.8 effect of the officers’ tech- interrogative niques and heroin symp- his withdrawal III. compels July toms a conclusion that his now turn We to Clark’s claims regarding statements were not voluntary.7 sup- violations his Sixth Amendment right to contention, port of this points Clark counsel Minn. R. Prof. Conduct 4.2 indications in record that he was suf- respect July the second 26 inter- fering symptoms, flu-like including sweat- the August view and (post- 3 interview ing and Clark points nausea. also to his interviews). arraignment brief, In his testimony that he vomited the in- before Clark characterized these claims as relat- true, Accepting terviews. these facts as ed, if overlapping. not Specifically, he as-

we still cannot physi- conclude that “part serted of’ person’s an accused cal when discomfort—even combined with to counsel “is based on” Rule 4.2. allegedly improper po- comments argument, But at oral Clark conceded that lice-deprived him of ability to make a Sixth Amendment analytically claim is an wholly unconstrained and autonomous distinct from a Rule 4.2 claim and that decision to as he did. To the con- governed each body a different trary, rather than succumbing to the offi- distinction, Having law. made cers’ interrogative techniques, Clark insist- Clark argument focused his throughout July ed on state’s alleged both interviews he had no violation Rule 4.2. not involvement It is clear wheth- Foster’s murder. The fact that er Clark adhered to a argument fabricated comments oral con- account of Foster’s death an implicit also shows that stituted withdrawal of his Sixth id.; Ritt, his will was not overborne. See Amendment claim. Accordingly, we first Anderson, suggests 7. The record Clark not does 247 Minn. 78 N.W.2d 320 —and appear dispute symp- (1956) withdrawal by failing give cautionary instruc- —that present July August toms were 26 but not weight tion to the light of the statements in 3. hearing Clark at the testified Rasmussen symptoms. of Clark's withdrawal But Clark high that he 3 on heroin he requested never such instruction. Conse- smuggled LEC. into the But not Clark has quently, he is not entitled to relief unless he argued testimony that this should be consid- establishes that the court’s district error satis- determining voluntarily ered in whether he plain fies the elements of the error doctrine. day. confessed that See, Goodloe, e.g., State v. 718 N.W.2d (Minn.2006). attempt did argues alternative if the plain appeal. establish error on district properly court admitted the statements, it nonetheless erred State v. under

337 police gave that warning Clark’s Miranda Clark state violated whether the address counsel, interview, 26 and at second which right the Sixth Amendment second, right Rule warning explicitly the state violated addressed Clark’s whether lawyer present. previously 4.2. a As have stated, clearly are findings these erro- Right Counsel Amendment Sixth Moreover, the neous on record before us. to the Amendment Sixth interview, the respect the 3 that all guarantees “[i]n U.S. Constitution shortly that after transcript indicates the accused shall en prosecutions, criminal n * warning, a gave Miranda Frazer * have the assistance joy right the following exchange the occurred: defence.” U.S. Const. of counsel his you a lawyer Frazer: know have [Y]ou as soon as right This attaches amend. VI. assigned you, right? this case for subject person is to adverse the accused including arraign judicial proceedings, Yeah, yeah. Clark: Gouveia, See, e.g., v. ments. United States can you you Frazer: And know that 2292, 187-88, 180, 104 81 S.Ct. 467 U.S. you you him her here with if or (1984). person An 146 accused L.Ed.2d them, right? wanted right his Sixth Amendment can waive Clark: .Yeah. counsel, the government but bears you’ve chosen to talk to us Frazer: And proving person of that “under burden here, being right? without them counsel right that he had a to have stood Clark: Yeah. interrogation and that during an present intentionally relinquished or abandoned reasons, we hold that foregoing For State, Giddings 290 right.” v. known court did not err when it con- district (Minn.1980) 595, (citing Brew 597 N.W.2d the state did not violate cluded Williams, 404, 387, 97 er v. 430 U.S. S.Ct. right Amendment counsel Clark’s Sixth (1977)); see L.Ed.2d also by conducting post-arraignment inter- Kivimaki, 345 N.W.2d State v. views. (Minn.1984) Eighth Circuit’s (adopting Rule Minnesota of Professional validity a waiver of conclusion Conduct the Sixth right to counsel under either Rule of Professional Conduct Minnesota judged Fifth Amendment “is essen or provides: 4.2 standard”). tially deciding In the same client, lawyer a representing In shall its government has met bur

whether the subject about the not communicate den, the circumstances courts consider person the with a representation case, experience, including age, each by an- lawyer represented to be knows the defendant. background Gid matter, lawyer other unless dings, at 597. 290 N.W.2d consent of the other law- lawyer has the case, concluded the district court yer law or or is authorized do so proving that the state met its burden order. court in- “voluntarily, knowingly, clearly estab case law relinquished” his telligently “[0]ur abandoned applies prosecutors 4.2 during post- [Rule] to counsel lishes known interviews of custodial arraignment This conclusion involved interviews. Miller, suspect.” v. findings charged State by the court’s factual supported (Minn.1999). Moreover, (1) 457, 464 regarding age, experience, and N.W.2d (2) may at- suspect of the contact with background; adequacy 338 * * * prosecutor party’s attorney. when prosecu- party

tributed to the the [T]he contact, tor the as of application orders ratifies cannot waive the [Rule apparently happened in this case. The only ap- Id. the can party’s attorney 4.2]— purpose protect repre- of Rule 4.2 is to the only the prove direct contact and the im- supposed sented individual “from the can party’s attorney waive the attor- legal skill and acumen balance of between present during a ney’s right to be com- at lawyer party litigant.” the and the Id. attorney’s the munication between client omitted). 463 (quotation marks opposing counsel. case, at (citing

In the court 600 N.W.2d 464 States v. district admitted United (9th Cir.1993)) 1455, 4 post-arraign- Lopez, Clark’s statements from the F.3d 1462 added). finding (emphasis passage ment interviews after that Clark’s Based on the lawyer 4.2, had notice of the interviews and an plain language above the of Rule opportunity present. to be Clark essen- with that a agree lawyer repre- we tially argues that court miscon- senting the district a criminal defendant more is owed requires, strued what Rule 4.2 and that the opportunity pres- than notice and an be by failing state violated the rule to obtain ent before the state the defen- interviews lawyer’s conducting his consent before the subject representa- dant about the of the argues The interviews. state agree operative tion. We also properly applied court construed and Rule word in Rule 4.2 is “consent.” 4.2, further, suppression of question more precisely difficult is Clark’s statements would unwarranted lawyer what defendant’s must consent even if the state In did violate the rule. may permissibly to before the state com- light arguments, these we of first consider municate the defendant. Our lan- steps what the state must take Rule when guage support interpre- Miller could repre- 4.2 applies interviewing before of requiring tation Rule 4.2 state to sented criminal defendant outside lawyer’s obtain the consent before commu- presence of lawyer. the defendant’s We nicating with the defendant outside the then state decide whether the took those presence. lawyer’s interpreta- Under this here, steps not, and if whether the state’s tion, the state could interview a defendant violation Rule 4.2 suppression warrants speaking who insists on to the police over of Clark’s statements. lawyer’s objection, long as as law- Requirements Rule yer present 1.2 during the interview. This interpretation lawyer denies the defense

Precisely what Rule 4.2 re power” “veto over a defendant’s decision to quires of the state in the of a context police, arguably while help- question criminal case is a re law we ing purpose pro- to achieve the Rule’s view de novo. See Lennartson v. Anoka- — tecting being the defendant from “taken Indep. Hennepin Sch. Dist. No. 662 Miller, advantage of.” See N.W.2d (Minn.2003). Miller, N.W.2d omitted). marks (quotation we scope described the of Rule 4.2 follows: interpretation An alternative of Rule 4.2 protects 4.2 of counsel is that the state obtain

[Rule] must consent from present any to be during lawyer communication the defendant’s before engaging defendant, client oppos- between counsel’s communication ing requested counsel. The focus 4.2 is [Rule] even when defendant has obligation attorneys respect being contact with the police after coun relationship against party the adverse seled such contact and the defen R. ter that Prof. Conduct 4.2 interpreta This such Minn. lawyer present. is dant’s substantially may any troubling applies, that the state not have com- is tion autonomy in represented munication a criminal infringes on defendant’s subject to the lawyer’s repre- beliefs as de about the of the favor of his defendant (1) A. See Carl the first fendant’s best interests. sentation unless state obtains <2) Pierce, consent; Theme: Re on a Basic lawyer’s Variations the the communica- visiting by Revision Model Rule the ABA’s tion “authorized law” as discussed is n .2 (Part III), (3) Tenn. L.Rev. 648 below; the state obtains a court or * * * (2003) (“[T]he is rule sim no-contact the authorizing order communication. and not accord ply paternalistic plain too does and reach our conclusion on the We autonomy respect for the client’s unambiguous language sufficient of the rule cur- as to speak the freedom without client’s ex- rently Accordingly, written.10 the lawyer.”); John prior past [his] the consent suggest tent of our cases Leubsdorf, Communicating with Another meet requirements that the state can Lawyer’s Lawyer’s Client: The Veto by providing of Rule 4.2 the defendant’s Interests, 127 Pa.U. L.Rev. lawyer the Client’s notice and an to be opportunity (1979) (“A legal system valuing longer those are present, good cases no choice should not as personal informed law. by lawyer aided

sume that a client cannot make sound decision whether Rule 4.2 Whether State Violated counsel.”). opposing communicate with foregoing principles With the personal infringement an autono Such mind, now we must decide whether unnecessary in the criminal my arguably is Rule 4.2 Fraz state violated when officers context, given protections that the law post-arraign Doran er and conducted provide law to crimi and case Constitution There no ment interviews with Clark. against government nal over defendants interviews; ac authorizing order court stated, As these reaching. previously pro must establish either cordingly, state entirely independent of Rule tections are lawyer to the inter Clark’s consented 4.2.9 or that the interviews were author views ized law. The record contains no evi Notwithstanding the concerns set above, lawyer consented to the we that when a dence forth conclude and the in a 3 interview between Clark government attorney is involved mat- Pierce, supra, at apparent See We effort communication.” also 9. note autonomy, personal protection of balance interests, public safety personal consid- erations, adopted a recognize at least one state has that one conse- 10. We undesirable exempts may quence interpretation of the no-contact rule version of our of Rule 4.2 poten- certain circumstances communication under order to avoid a be that the —in govern- represented persons and admissibility between of a statement tial obstacle to lawyers engaged likely in civil or criminal ment the Rule—will be less to obtain under R. proceeding law enforcement. Under Utah Prof. legal to interview advice before 4.2(c)(4), expressed such communication represented Conduct defendant who has represented person light exempt if the initiates with them. of this desire prior possible consequence to the other concerns the communication “if represented person opinion, has in this we invite communication the we have articulated committee(s) voluntary appropriate given a written or recorded review counsel, government lawyers' including 4.2 as it relates waiver of Rule informed counsel, represented criminal defendants. for that have substitute contact police. ambiguous But record is more Whether Suppression is Warranted respect the second 26 inter- Having concluded that the state light testimony view in from Balck and 4.2, violated Rule we must determine Handley, well as indication to whether the sanction that seeks in spoken Frazer and Doran that he had is, appeal suppression —that Handley Handley “pissed off.” post-arraignment interview statements —is While this could an support argu- evidence matter, a preliminary warranted. As we Handley ment that gave tacit consent for professional note that 4.2 is a Rule rule of interview, we conclude tacit con- conduct, or statutory not a constitutional sent—even to the extent it existed provision. here— designed pro “The rules are requirements is not guidance lawyers provide sufficient meet the vide a of regulating through Rule 4.2. structure for conduct disciplinary agencies.” Minn. R. Prof. We also conclude that post-arraign- Conduct, Scope Accordingly, 20. cmt. ment interviews of Clark not were com- rule is “a invoking violation basis for by munications “authorized law” for the disciplinary 19, process,” id. cmt. purposes Rule 4.2. The comments fol- * * * necessarily “does not warrant lowing provide 4.2 examples Rule of com- remedy,” nondisciplinary Id. cmt. law, by including munications authorized analogous Based on principles underly- by lawyer communications on behalf of ing professional conduct, their own rules of a client is exercising who a constitutional “nearly court every ruled on has [a legal right or other to communicate with no-contact violation rule in a criminal law government. Communications au- has found that suppression context] of a by may thorized law include also investi- inappropriate remedy is an [statement] gative lawyers lawyer’s activities of representing ethical violation.” State v. entities, (Me.2003) governmental 335, directly McCarthy, 819 A.2d or 341 (footnote omitted); see, through investigative prior e.g., v. agents, State John- son, (Iowa 1982) (con- 417, 318 N.W.2d 437 commencement criminal civil cluding suppression of a defendant’s proceedings. enforcement statements is not an appropriate remedy Minn. R. Prof. Conduct 4.2 5 (empha- cmt. for the government’s violation the no- added). sis dispute There is no this rule); contact State v. Morgan, 231 Kan. case that second July 26 interview and 472, 1064, (1982) (same); 646 P.2d 1070 the August place 3 interview took after Green, People 273, v. 405 Mich. 274 criminal proceedings were commenced (1979) 448, (same); N.W.2d 454-55 State v. Further, against Clark. we do not con- Decker, 432, 226, 138 N.H. 641 A.2d 229-30 clude that “exercising Clark was a consti- (1994) (same); Ford, see also State v. legal tutional or right” other when he com- (Utah P.2d Ct.App.1990) 399-400 municated during these (holding government’s that the violation of Finally, interviews. we no discern other independent no-contact rule is not an basis on which conclude that the inter- reversing basis for a defendant’s convic- views in case were authorized law. tion). reasons, For all of the foregoing we jurisdictions, Unlike these we not conclude that the state violated Rule 4.2 adopted a per placing suppression se rule conducting the post-arraignment inter- of defendant’s statements the am- outside views with bit possible Clark. sanctions for a violation of police. contact with the Rather, case- hand initiated have taken a 4.2. we Rule Ford, 539 at 224. N.W.2d determining whether by-case approach egregious as to is so the state’s conduct Ford, alleged addressed viola- we jus- fair administration of compromise the 4.2 under different tion of Rule somewhat Ford, v. tice. See State N.W.2d ultimately concluded circumstances (Minn.1995). In cases where 224-25 suppression the defendant’s state- we sufficiently egregious, conduct is state’s warranted. Id. at 225. ments was not suppression is war- may determine that police in Ford conducted two custodial ranted. represented interviews with defendant requested police. with the who Lefthand, v. such case State One at 223. The defendant initiated the Id. (Minn.1992). yet We had N.W.2d 799 that he by stating contact had first egregiousness the standard articulated police “right speak away” with the about Lefthand, case when we decided urgency matter and a life and death “a of indirectly in Rule 4.2 the broad references police Id. conducted both situation.” protections of er context constitutional notifying either the interviews without n. 6 Id. at 801 against self-incrimination. lawyer. county attorney or the defendant’s Nonetheless, suppres concluded that we considering police Id. Without whether the inculpatory of statement sion Lefthand’s would fall within the am- officers’ conduct regardless apparent of his was warranted county attorney’s of Rule 4.2 absent the bit protections given of constitutional waiver involvement, noted that while state- we police which the the circumstances under in of the are ments taken violation Rule 801-02; Id. at obtained the statement.11 exclusion, subject Ford, (noting 224 at see also N.W.2d was of and waived that Lefthand advised not an automatic did create Lefthand the rights). Specifically, his constitutional rule for a violation of Rule exclusionary permis police interviewed Lefthand Conduct], 4.2, by R. Prof. [Minn. assigned to the prosecutor from the sion in our prosecutor. Driving decision defen but notification the case without our Lefthand, was belief the fair at Lefthand, 488 lawyer. dant’s N.W.2d justice had been com- administration of interview, time the Left 800. At the the determination that promised. Our hand, appear had made his first court who in case material should excluded in homi alleged ance with two connection cases was not based and future similar cides, a court- custody pending in R. solely was the violation of [Minn. on competency Conduct], exam was ordered Rule mental but rather based Prof. government’s not indicate of the egregiousness ination. Id. We did Left * * * occur, but The facts came action in total. hand how the interview Left- Less egregious. egregious case that Left- hand were subsequent in a we noted interrogation formally custody of a accused 4.2 in a we made Rule 11. While reference represented by counsel Lefthand, person did our who is we not base footnote in inculpatory suppress proceed prior state- to notification not decision should presence of the Rule. State- ment the state’s violation of counsel. counsel or Rather, supervisory pres- cited inherent we our notice to ments without or obtained power: subject to at are exclusion ence counsel trial. supervisory power exercise of our [I]n the (footnote Lefthand, 801-02 N.W.2d at justice fair administration of to insure the omitted) added). cases, (emphasis we that in- and future decide so require building violations do severe a where interviews were occur- remedy. ring permit lawyer employees. of the Id. at 461-62. We added). (emphasis Id. at 224-25 facts, in light concluded that of these Miller, egregious- we considered the sufficiently state’s was egregious conduct ness of the state’s conduct in context of compromise jus- the administration of exception law” “authorized Rule tice and to exceed what was “authorized 4.2. 600 Miller in- N.W.2d 464-68. law.” Consequently, Id. at 468. we held volved officers who acted under the parts the defendant’s state- attorneys direction of assistant county lawyer ments taken after his contacted the against execute search warrant a busi- officer at the site must be suppressed. Id. investigation by ness under local and fed- agencies. eral During Id. at 460-62. Balck, the When we consider the actions of warrant, Frazer, execution of the the defendant— and Doran the context of the suspect agreed then a participate above, in an cases discussed we conclude that — faxing interview with after a copy the conduct surrounding state’s viola- lawyer. warrant to his Id. at 461. tion of Rule egregious 4.2 not so toas While underway, the interview suppression the warrant the of the statements lawyer contacted the police officer during oversee- made the post-arraignment ing First, the warrant execution on site and told interviews. we that conclude based the law, officer he did not want to police take on our case existing Balck could rea- any of sonably statements from the business’s em- have believed that his obligation ployees lawyer’s without the presence. Id. under provide Rule 4.2 was to Clark’s law- yer officer refused to terminate the inter- with and an opportunity notice to be lawyer views and to speak present refused let the the post-arraignment inter- to lawyer Further, the defendant. Id. The then views.12 the record before us contacted county an assistant attorney, does not support conclusion that the who ratified the officer’s clearly conduct. Id. Af- district court finding erred in that ter the receiving county assistant lawyer attor- Clark’s received such notice and an ney’s response to his the inquiry, opportunity defen- present to be at the second lawyer dant’s proceeded premises contrast, the to 26 interview. the record where being his client was interviewed and does support a conclusion that the court again asserted that he represented clearly the finding provid- erred in that Balck employees. business and its Id. lawyer The offi- ed Clark’s with notice of the Au- cer did permit lawyer gust not the to enter the opportunity interview an to be 12. record, contact, agree Based on we attempted the do with attempted not and did to the dissent’s contention that Balck believed he evening August contact in case of the the of required only to "attempt to contact” the someone from Public Defender’s Of lawyer authorizing police Clark’s before the fice to them inform that had made [Clark] * n grant repeated * speak to requests Clark’s to police contact the [with] and wanted gave particular with them. Before Balck the police. to talk to the testimony the support that dissent in cites of Moreover, testimony on the which dissent contention, Balck indicated to the court relies does not establish that Balck authorized that he contact made someone to Clark "whether public every meeting defender's office before not”; rather, contact was made or the testi- August other than one on 3. Balck testi- mony only regularly establishes that Balck fied: kept Frazer abreast of his efforts contact recollection, my To the best each time lawyer. Clark’s Frazer, by Sergeant I was contacted I multiple changes lawyers representing voicemail after-hours Balck’s present. Clark, may perceived before the have twenty minutes and what Balck messages left effectively pro- responsiveness do not August 3 interview lack of have been opportunity. vide such a mini- public office. At defender’s mum, a conclusion supports the record all Nonetheless, we consider when poor communication be- there was record, perceive not in the we do evidence may led to have tween both offices evidencing the bad faith actions as Balck’s sides; both this frustration frustration on professional obli- disregard or blatant lapse judgment may associated led to Balck’s previously have we gations conduct.” Un- the 9 phrase “egregious attempt prevent when he did attorney county Mil- Thus, like assistant on while we p.m. August interview police to ler, authorize the Balck did not prevent Balck’s failure to do not condone lawyer access to Clark deny interview, disagree we August outside the lawyer as waited even of Balck’s ac- characterization dissent’s demanding room the interview door to flagrant display professional tions as a contrary, according To the talk to Clark. thwarting misconduct aimed at Frazer, tried to reach Clark’s Balck Rather, the assistance of counsel. August and refused allow lawyer all testimo- light we conclude that in to occur because Balck interview court, failure ny the district Balck’s before message through.” “get [a] unable to pro- prevent August 3 interview to discount as unreliable see no basis We appropriately ceed more characterized testimony that after Balck Frazer’s sworn judgment under professional lapse attempts made several unsuccessful frustrating circumstances. lawyer Balck reach Clark’s the rec- evidence in There is substantial just going to have Frazer that “we’re told to repeated ord that Clark made efforts thing this ironed out” get until we to wait and speak police with the happen today.” to going isn’t “[i]t after —before that lawyers Moreover, consulting that Balck ex- with his Frazer indicated —and state, Clark, post- the state “take initiated the his intention that not the pressed Indeed, to Clark’s Frazer high respect arraignment the road” interviews. Balck’s apparent This intention him was case. told “Iversen testified Balck 2, August 27 and actions wanting on to actions client very frustrated with her meet that he tried to Rule advice,” which indicate her talk after continue to even he as understood them. requirements 4.2’s him told Balck the court that Iversen told was morning August that she may that Balck The dissent theorizes of Clark —a state- “washing her hands” Clark’s law- been frustrated because have cross- deny under ment Iversen did not blocking past inter- were successful yers ini- repeated examination.13 While Clark’s just be it would views. We believe police contact does tiation of 3, by August Balck speculate to valid the state decision as to whether affect our by the combination grown had frustrated our 4.2, it does influence violated requests to the Rule multiple of Clark’s to the leading lawyers, that the conduct advice conclusion despite the police be- the communications was tion that surrounded though Iverson's comment made 13. Even day police attorney’s August county inter- office and after tween the Clark, we find her comment to viewed public defender’s office. degree mutual frustra- as to the informative violation so egregious particularly was not as to war- and in addition to the exam- rant the suppression addressed, Clark’s statements. ples already we we note support that in of its conclusion that “the

Finally, disagreement we note our basic police adopted a strategy clear to under- with the as to dissent what the record counsel, mine with his relationship regarding establishes the motivations of even appointed,” before counsel was police and Balck this case. The dissent states that Doran said to dissent Clark: apparently concludes that there “ your campaign attorney. prove was a T am I can conscious coordinated better by Balck, the police, assisted to under- your attorney. than Just do what I tell ” rights. mine Clark’s constitutional But we you reaching conclusion, to do.’ find support little evidence to the dissent’s the dissent notes that the sole basis for played conclusion that “Balck a role in this statement attributed to Doran is assisting implement their police testimony Clark’s “unrebutted” at the Ras- strategy get access Clark after coun- hearing. mussen While Doran was not added). sel appointed” (emphasis specifically questioned during the Rasmus- Rather, we conclude record establishes hearing sen about he whether made such a that once police recognized that Clark Clark, statement we conclude that Do- represented lawyer, they contact- essentially ran rebutted Clark’s statement ed Balck to seek Balck’s advice on how to when Doran testified that he did not have proceed responding before re- any conversations with the LEC peated talk requests to to them. This is pre-arraignment before formal inter- precisely what should we ask the police view he conducted with Frazer. do, encourage we contin- ue working closely prosecutors Moreover, agree we do not with the help ensure that rights defendant’s are dissent’s conclusion there par- was no not violated. urgency compelling ticular the police to respond to Clark’s requests to talk with

The record further establishes By definition, them. the existence of an response inquiries to the officers’ between ongoing investigation implicates murder July 26 Balck repeatedly public safety, duty and the have a attempted reasonably what meet be- identify and vigorously investigate lieved professional to be his obligations. More particularly, noted, as clues that could lead the previously arrest and Balck testified that with exception incapacitation persons the of of may who 3, August each time he by was contacted played role in police the murder. The Frazer, “attempted he and did contact” reasonably could have believed that Clark public someone from the office defender’s provide wanted to actionable information purpose for the of informing public the in their investigation, assist and there- defender that had made contact with fore, they appropriate acted with urgency police. the attempting in respond to Clark’s re- peated requests to talk with them. bottom, At Fur- disagreement our the ther, the record July reveals dissent appears to stem from con- how we 2, August the did respond strue the not record as whole. We arrive “immediately” request talk; different regarding only conclusions Clark’s not Balck, rather, they what happened police, delayed interviewing between the Clark for Clark, lawyers why days Clark’s also one or more notify to enable Balck to —but they the events as lawyer. unfolded did. More Finally, Clark’s we note that Here, Spreigl the evidence admitted testimony that was consis- give Clark did transcript in form of a read an the August 3 statement. tent with his County attorney. In the Ramsey assistant reasons, we foregoing For all the transcript, July Clark admitted that not court did err conclude that district carrying gun, he entered the while suppress motion to it denied Clark’s when in Minneapolis her bedroom the victim made to the the statements Clark that he home. Clark further admitted interviews on during post-arraignment gun, causing showed the victim her might he hurt have reasonable fear that her, attempted to penetrate and that he IV. argues penis. with his victim Clark’s Finally, we consider he in the court that the infor- did district abused its court claim that district transcript is irrele- mation contained when it admitted evidence discretion unfairly prejudicial. vant and for 1994 conviction substantive matter, preliminary the admission of we note that We review As purposes. precisely of discre the record is not clear on what for abuse Spreigl evidence14 (citation Blom, prior fact conviction was at 611 material tion. N.W.2d (“In omitted). at 686. challenging The admitted establish. Id. appellant probative and need for Spreigl assessing evidence bears the value admission evidence, must the error and re the district court identi- showing burden of fy precise disputed fact which prejudice. Id. sulting Spreigl (quo- evidence would be relevant.” crimes, wrongs, Evidence of other omitted)). marks The court stated tation prove the is not admissible “to or acts admitting for the evidence as its basis of a order show person character follows: therewith,” may conformity but action case case is weak on In this the State’s purposes, such as “be admissible other It’s the issue of intent and accident. intent, motive, proof opportunity, prepa rape. The weak on the issue of the also ration, identity, or knowledge, ab plan, argues they arguing are defense Minn. R. of mistake or accident.” sence I dis- happened that this accident. 404(b). examine five Evid. Courts factors * * * * * * defendant indi- agree. deciding whether to admit such evi Doran, cated, spoke when he to Officer (1) given the state has dence: whether happened hap- to Foster that whatever evidence”; its intent to admit the “notice of accident, pened by and that did not (2) “clearly the state has indi whether to kill him. He also rebuts intend will be offered to what evidence cate[d] rape [B.B.]. claim he intended (3) there is “clear and prove”; whether reasoning is be- problematic The court’s convincing evidence the defendant (4) act”; not indicate that in whether cause the state did participated prior the Spreigl the evidence to intended to offer the is “relevant and material evidence (5) accident, case”; with re- prove the absence of either pro the and whether state’s Moreover, B.B. spect to Foster or outweighed of the “evidence is bative value consistently in with the the stated interviews prejudice to defen potential its Ness, testimony 676, in trial v. dant.” State 707 N.W.2d (Minn.2006). B.B. on had no sexual relations with 685-86 488, 167, 491, (1965). 169 Spreigl, v. 272 139 N.W.2d 14. See State Minn.

346 thus, “precise fact” we disputed past the is have affirmed the of admission

16— whether sexual relations occurred at all. years misconduct that occurred 19 before crime, id,., charged the see we have charac Wermerskirchen,

In v. we State noted “troubling” span terized as a time of 16 rape prosecutions for sexual years when the defendant incarcerat abuse, be Spreigl may evidence introduced Blom, years. ed for six of those 682 establish, by showing a common scheme Generally, at N.W.2d 612. the time plan or a sexual act occurred. 497 —that 235, (Minn.1993). span between miscon past increases the 240-41 N.W.2d More duct charged, similarity and the crime precisely, stated that when defendant the we between the oper- contends that conduct which the acts terms of modus fabrication,” charge was based was “a andi must in order likewise increase for Spreigl evidence is admissible to rebut past misconduct to be relevant. State (Minn. as long contention as the district court 195, v. Washington, 693 201 N.W.2d that the is sufficiently 2005) satisfied evidence charged relevant to the crime. Id. at 241- above, Based on the discussion relationship

42. The closer the between crux of inquiry past our is whether Clark’s past charged misconduct and the of- alleged misconduct and the of B.B. rape fense, time, “in terms of or place, modus sufficiently share a operandi similar modus operandi, greater the relevance and such that past misconduct is relevant probative of the [Spreigl ] value evidence.” despite the 9-year span. time When de Ness, See 707 N.W.2d at 688. termining past whether misconduct is ad past Clark’s misconduct and the alleged missible under the or plan common scheme rape of are relatively B.B. close in terms of exception, the misconduct “must have a place, notwithstanding Clark’s assertion to similarity marked operandi modus the contrary. Both acts occurred in the Ness, the charged offense.” 707 N.W.2d area, metropolitan same the past mis- added). (emphasis 688 the prior “[I]f conduct occurring at a home in Minne- simply crime is of the same generic type as apolis alleged rape B.B. occur- offense, the charged it ordinarily should be ring at apartment Paul. St. Wright, excluded.” State v. 719 N.W.2d time, Regarding proximity in (Minn.2006) (quoting 917-18 State v. past years sexual misconduct occurred 12 Shannon, (Minn. 583 N.W.2d B.B., alleged rape before the but be- 1998)). cause approxi- incarcerated for Here, only years apparent similarities mately misconduct, three be- years tween past present- is a more misconduct as appropriate characteriza- ed to jury alleged rape tion of time and the span purposes for the B.B. (1) Wermerskirchen, our are analysis. gun See both acts involved of a the use victims; (2) 242 n. (noting N.W.2d at time threaten the acts both oc- bedrooms; (3) in prison may defendant curred in spent insignifi- the victims’ cant to vaginal the extent the defendant was inca- both acts penetration involved crime). pacitated from committing attempted penetration.15 While vaginal con- Argument from the argument state and defense coun- Clark’s. But the also revealed that misconduct, presence jury sel prior alleged outside indicated rape unlike the misconduct, B.B., prior alleged that like the of did robbery, not involve a occurred B.B., rape early morning occurred in the after Clark two others broke into the home, targeted acquaintance hours and an victim's and involved oral as well as

347 Further, the length tíie incident. time be- trast, affirming previous in cases our the incident and Clark’s trial evidence, jury past tween the Spreigl admission of danger jury the lessened the would tending to es- with details presented improper pur- Spreigl the evidence for use modus operandi. a distinctive tablish more the poten- two factors make poses. These miscon- Kennedy, past in the example, For slight. prejudice tial to Clark charged crime both involved duct and the ad- “nearly identical” victim the same to admit conclude whether We vances, in the incidents occurred and both conviction for substantive Clark’s 1994 N.W.2d at 391. victim’s bedroom. 585 case a close call and purposes in this is (1) intru- “involved Wright, both incidents therefore, abused dis- the district court its vulnerable victims into homes of sions the evidence. Id. cretion when admitted had known some if admissibility [defendant] whom the (stating at 685 the (2) morning time”; early call,” “in the place presents took “a Spreigl evidence close admitted). hours”; (3) preceded by not “were extensive should the evidence (4) use”; simi- drug were committed with affirm the But we will nonetheless (5) “markedly weapons; lar involved that he was court unless Clark establishes 719 injuries the victims. similar” by the abuse of discretion. See prejudiced Blom, inci- in “[b]oth N.W.2d at 918. And (Minn. Bolte, v. 530 N.W.2d State kidnapping young, dents involved 1995). is to entire role examine the “[Our] remote, areas” petite women wooded whether there trial record and determine subduing women and “also involved possibility wrong that the is a reasonable throat at their neck and applying force fully significantly evidence affect admitted areas.” N.W.2d at 612. * * (quotation Id. ed the verdict past misconduct Given that omitted). factors support marks Several alleged in remote time from relatively case, in there is no conclusion that rape of B.B. and the two incidents evi possibility Spreigl reasonable arguably not jury do described find significantly jury’s affected the dence similarity,” mis- past share “marked ing attempted that Clark committed or value probative conduct is of modest criminal sexual conduct. As commit plan. establishing a common scheme or asserts, gave the district court state last five iden- But under the of the factors cautionary jury instruction before the cases, recent evidence Spreigl tified our and before Spreigl evidence was admitted Further, determine whether closing Spreigl we must nonetheless argument. value, probative however jury that misconduct’s introduced to the evidence was modest, unfairly testimony from outweighs potential through compelling its live Ness, victims, e.g., through but assistant prejudice past Clark. See Here, plea of a jury county attorney’s reading learned N.W.2d at 685-86. past hearing transcript presentation surrounding the relatively few details —a past distinguishing misconduct “because vaginal penetration. Another from differed this according deliberately, is that Clark feature between the offenses case [Clark] apparently past miscon- told victim of testimony, genital washed the victim's [B.B.’s] money, dis- duct owed him and he that she area, prevent any condom [and] used leaving telephones her abled two before finding on the of DNA evidence semen home. appears that the district victim.” It therefore granting admit the state’s motion to Before analysis apply proper court did not case, Spreigl evidence in this the district deciding admit the evidence. rape alleged expressly court that the found comprised just approxi- police a few minutes of created because the wanted talk to mately days testimony. present. of witness Fi- to Clark without counsel nally, the Spreigl state did not refer the argument. in closing

evidence its I. I agree principles with in the formulated reasons, For all of the foregoing we hold 4.2, majority the opinion concerning Rule while court the district abused its that, absent a communication that au- is discretion when it admitted the Spreigl thorized a specific law or court evidence, a new trial not warranted be- order, the must obtain state ex- counsel’s cause Clark did not establish he was plicit consent communicating before with a admission prejudiced by of that evi- represented I also agree defendant. dence. principles state violated those it when Affirmed. post-arraignment conducted communica- tions with Clark without counsel’s consent. HANSON, (dissenting). Justice But I disagree with conclusion of majority I respectfully opinion I dissent. would that the post-arraignment hold that district in court erred communications admitting sufficiently egre- were gious to post-arraignment po- suppression Clark’s statements to warrant lice because those statements were ob- First, police adopted strategy a clear through tained violation Rule 4.2 of to undermine relationship Clark’s with his Minn. R. Prof. Conduct was suffi- counsel, even before counsel appoint- was ciently egregious suppression. to warrant ed. In their pre-arraignment interview And, if we need to reach issue of the Clark, police fully were aware denial Clark’s constitutional obviously concerned about the limita- counsel, right against and his related com- they tions in getting would face access pelled self-incrimination, I would also hold Clark after was appointed. counsel To rights that Clark’s constitutional were vio- limitations, avoid police those persuaded lated. go counsel, his misleading around Clark into that the believing police would

Perhaps my disagreement with the ma- be more attuned best interests jority opinion begins, fundamentally, with than would During very his counsel. supposition requests interview, first going which was to be brief jailers that he able to talk because Clark about to be taken to state, created some urgency for the provided counsel, court and would be which necessitated that the respond state engaged Frazer and Doran persis- immediately imposed a similar burden persuade tent effort to Clark to his waive urgency on defense counsel. Such re- right to counsel future interrogations: quests created greater urgency no for the state than a requests defendant’s They’re gonna Frazer: come and ask jailers that he be let free. ya There is no talk to fewa minutes and-—and basis the law to conclude that the you’re gonna state have go to court. any obligation has to act on the request you And if to talk want lawyer us— go defendant to his own lawyer you around counsel or no can always talk to — and initiate police, conversations with Okay? es- us. get You know how to pecially where the police improperly Mike, you hold of know how him urged just to do If get that. there was they hold of me. But if inter- here, any urgency one rupt minutes, you us a few say you want to lawyer gonna have to say- a go, you and have gotta to talk to us. want to talk those ing, “You don’t of the case”. What guys because All right. Defendant: my piques me curiosi- telling you’re they you Even if tell us don’t Frazer: happened this stuff St. ty. ’Cause us, can to you talk still talk want to ya past from Paul. knows Mike that. you if choose to do us working why and—and that’s we’re n n : n H: only way for okay? And the together, call me you gotta But him or Frazer: story out is you get this whole you. ya gotta ask us come see to talk you call and ask gonna be if us all is tell ya You know have do interrupted you get to us. If we jailer, [sic] “I want to see Mike Dorn story, okay? the whole haven’t told Minneapolis and Steve Frazer: with you my gonna I’m leave So what Paul.” with St. gonna know how you’re card and I’ve Defendant: been— you already me. And get hold you up, help Frazer: And we’ll clear of Mike. And get know hold how can’t you but if ask that —we don’t keep going. we’ll

you. back and see come

Frazer: Do Defendant: Yeah Frazer: But would have people. You though? saying us once stand story. that? about you have a you can call us back to you understand We to call us. Do know what if we can’t come [inaudible] get lawyer. You I’m saying? interrupted you what I’m his—his talk under- tell Defendant: Frazer: we would talk to minutes, you’re us. other n I we’ll * * already it’s And people are like, ^[*] [inaudible] just you with Mike as much as gonna if All right. but from you have to know, okay? don’t gonna saying. up deal proceed here call Mike and you you go into us, out, And what if them, I’ll in a few court, what you call Why is Defendant: that? okay? to' you, out Doran: We can’t reach Well, just rules. But Frazer: it’s only If I don’t call—the Defendant: lawyer have here in you’re gonna through I’m these with- thing going you go little bit to court. when You know what right now. drawals this out. gotta get And I saying? I’m Right. Defendant: you But if don’t— Frazer: might you tell lawyer Doran: And feeling I’m right. Defendant: you I tell what not to to us. can’t talk do, know, your you that’s—that’s Time’s essence. Doran: choice, you ask not to they if—if but Yup. Frazer: to, us, you you want talk to still Time’s of essence. Doran: of us. can call either you know—if don’t you so Frazer: Just n n n n job and we to do our have call—then other ahead what coming keep plugging attorney’s Frazer: Your —re- you And I think have told us. any- people to us you can talk member — tell us, important a lot of stuff okay? If they interrupt time if well, you’re people one us, you’re ’Cause talk us. you want to actually Okay? equally who was there. Finish to counsel much as would up your persuade smoke and when we’re done attempts to to defendant con- off, out, we’ll turn and we’ll head but I an interrogation tinue with without counsel know, you being you thank for speak after the defendant to has asked to a — just I straight with Mike. You and Hannon, lawyer. e.g. See State v. 636 met, something ya if can do for (Minn.2001) but we (holding N.W.2d that straighten to all this mess out—we’ll police impermissible made induce- you don’t if belong do it. You in here by telling ments that defendant his side didn’t do this. story of the would if never told he Munson, lawyer);

asked v. for State (Minn.1999) N.W.2d 140-43 (holding anywhere. not going Frazer: We’re made police impermissible induce- You have to call us— by telling a ments defendant that a win- Doran: Yeah. opportunity dow of would close if he asked you’re Frazer: As soon with done lawyer). for a done, court, you’re you as soon as if say jailer “I talk to the need to to Second, Frazer testified Balck Mike from and Steve St. Paul and played assisting police role to Minneapolis” they’ll call those us on — implement get their to strategy access to we’ll numbers and come back. Clark after counsel appointed. Fraz- give my Doran: here. I you that, Over word. er said because he knew that “once him, had appointed counsel to [Clark] right. All Defendant: procedures there were we go had to particular sig- These conversations had through him,” before we could talk he nificance pre-existing because had a “put things in prior some motion relationship Doran with as a confidential post-arraignment request [Clark’s speak wrongly informant and assumed that Do- police]” by contacting Balck to seek his ran would look out his interest. Doran how proceed advice on after counsel was assumption, reinforced that attempted and appointed. to establish a further divide between Clark obtain, when, he might counsel Third, specific Balck had little recall of according to testimony, Clark’s unrebutted attempts his to contact defense counsel. he your attorney. prove said “I’m I can only say He could that each time he was your better than attorney. what Just do by Frazer, contacted attempted he to con- I’m telling you to surprise do.” It is no tact someone from public defender’s ignored that Clark later his counsel’s ad- testify office. He did not content of vice sought Doran, talk directly to any specific response contact or what he by who successfully then had subverted from received defense counsel. Most im- relationship with any Al- counsel. portantly, he did say that he made any though police thereafter contacted to contact attempt August on counsel or Balck each time asked speak p.m. fact, before 8:40 3. In them, the protocol use of this cannot be Balck said could not specifically recall prior divorced from the efforts Handley whether ever Iversen told him ignore counsel, induce Clark to his as de- speak that Clark did not want to to the tailed above. police. Obviously, testimony from the below, she, As will Iversen, be discussed section II we know that both directly these Frazer, comments through violated Clark’s Balck told at least Fourth, Balck’s majority excuses not want to that Clark did twice Rule 4.2 on the comply failure police. reasonably “Balck could grounds gap to fill attempted The state Rule 4.2 obligation his under believed hear- by relying recollection Balck’s provide lawyer with notice was to Frazer, testimony who described say at the opportunity present to be Balck what communications Balck interviews.” But post-arraignment him Balck’s communica- Balck told about testify that he held such a belief. did not But Frazer’s defense counsel. tions with acknowledged Balck importantly, More descriptions actually identi- second-hand not that he did fulfill even lesser obli- communications problems with Balck’s fied that: reported gation, testifying counsel. Frazer with defense Balck July him on that that Balck told Each time I received a call from that time to Iversen had set a for and Frazer, I I would tell him that Sergeant day that and that Iversen talk to Clark to call Public going make the to the present. told that she could be had been them; inform and Defender’s Office to that he arrived reported Frazer then when recollection, mak- my the best of after to interview, and present for the Iversen attempt, that whether the contact ing to be going Frazer that was not told Clark not, Sergeant or I would call was made said, going “You’re not interviewed back inform him that I had Frazer my near client.” anywhere made that contact. attempt made the or explained he this situa- Frazer said that added). course, attempt (Emphasis Of fully again to Balck Clark asked tion when itself, counsel, con- contact does not to then August on 2. He to meet provides op- actual notice no stitute evening on Balck’s advice described to be portunity present. August 3 as follows: told me that a notification had been He responsibility Balck described his be defender’s office and public made “attempt contact” defense counsel. time, and he said they were aware of he acknowledged only that the time Balck maybe maybe expect that I could on his Frazer to talk to Clark was told answer that —see some- not—he couldn’t Frazer phone first call from on again, from office there like one their I Frazer until when he asked “wait date, Miss the earlier on the [28th] * * * the call to de- attempted make [sic], irregardless of wheth- Iversen not tell Frazer to fense counsel.” He did there, they there or not that I er were evening on interviewing off hold proceed the interview. should that 3rd he considered because course, testimony we know from Balck’s Of attempt I night, every at I made “at 8:40 only gave notification before attorney or to contact the defense could phone 3 interview was a p.m. August the 9 attorneys by leaving message main message public left at the defender’s number, talking to from main someone p.m. Balck had telephone number 8:40 answering service.” counsel no basis believe defense extremely short actually It is obvious from of the time or were aware notice, main given generic after hours to they might present. expect originally 28th. Frazer said this event occurred 29th, testimony his but amended office telephone, and the authorization for lapse judgment Balck’s when he did not Frazer to proceed though attempt prevent even p.m. defense the 9 interview on actually contacted, August counsel had not 3.” I been find no basis in the record to suggest Balck had that defense providing no intention of ade- counsel communicat- poorly ed with the state quate timely or were not opportunity notice or a real for in their responses to Balck. present counsel to be evening meeting on August but instead consid- It should be remembered that the police ered responsibility to be over when he spanned contact with only days nine contact, attempted no matter how futile from beginning to end. Although Balck’s attempt might have Balck been. specific, recall was not from the testimony clearly evening August knew on the Frazer, Handley, and Iversen we can that defense counsel would not account for activity day each opportunity present to be for an interview can see that defense responded counsel begin only was to 20 minutes after immediately to every provided call that Balck left p.m. the 8:40 telephone message adequate notice of a proposed meeting at the main office. That interview was with Clark. nearly completed before Balck talked to Tuesday, July 26, On day of the public defender’s answering service at arraignment, Clark asked police to talk to Thus, p.m. any 10:40 may confusion Balck after arraignment and Frazer called have had precise about the scope of his Balck, who then talked to Handley.

legal responsibility does not excuse him Handley it made clear to Balck that he did because only he not failed to secure de- not want his client interviewed. He told consent, fense counsel’s he failed to even Balck it would be the practice better to not provide defense counsel with notice and an speak with Clark it only because would opportunity to present. be problems course, create later. Of Handley Fifth, majority could suggests forceful, that have been more Balck but his may grown have answer by responsive frustrated what he and it did not pro- “perceived vide the requisite to have been a consent. respon- lack of public siveness defender’s office.” 27, On Wednesday, July Clark asked to But Balck did testify not to either frustra- talk police Balck, to and Frazer called who tion or lack of responsiveness. To the then called Iversen. responded Iversen contrary, recognized he that each time he immediately by visiting jail. Clark at the had contacted defense counsel before Au- Iversen and, met with Clark for an hour 3, gust defense counsel had rushed left, when she longer Clark no wished to jail persuaded Clark not to meet with talk police. Iversen left a message for police. If frustrated, Balck was it could Balck to that effect on evening of the only be because each provided time he 27th. defense counsel with notice oppor- and an Thursday, 28, On July po- Clark called tunity to present, defense counsel did lice, Balck, Frazer called Balck called Iver- job their and were successful in blocking sen, again and Iversen visited the interview. Jail. Balck told Frazer that he and Iversen

Sixth, I can find no support for the arranged had for a meeting with Clark and statement of the majority that “there was day. later that But after Iversen poor communication between both Clark, offices met with longer Clark no wanted to may have led to frustration on both meet with police. Frazer, Iversen found sides and may this frustration have led to waiting Clark, who was to interview “personal infringement not to talk on defendant’s that Clark did want advised him autonomy.” contrary, To the I him. believe defense and the court an both counsel any request to talk not make Clark did obligation safeguard a defendant from 29, July Friday, Saturday, on unknowing, unintelligent, or involun- 31, 1. Monday, August Sunday, July autonomy tary personal exercise of request such a made apparently of significant rights. results the waiver he 2, and Frazer testified that August per- When defendant wishes exercise notes, Balck, majority as the called but autonomy sonal waive the to be testimony from Balck’s whether is unclear counsel, must represented by he do so to contact any attempt defense made record, before court on not in a day. testify Balck did not counsel that only private meeting police, after any specific contact and Iversen initiating n being fully advised the court of the any testify receiving contact on did 5.02, disadvantages. P. Minn. R.Crim. only to con- attempt other 1(4). subd. When defendant wishes to Balck tact counsel that described defense autonomy to personal plead exercise his p.m. August when he left 8:40 offense, guilty to an the court cannot ac- telephone message at the main office plea making cept without extensive number, p.m. a 9 interview about of Clark. plea knowing, record assure Balck not contradict of the testi- did Minn. intelligent, voluntary. R.Crim. mony Handley and Iversen. Prior P. 15.01. a defendant wishes to When August counsel evening of defense autonomy agree his to to personal exercise to contact Balck responded had each from facts, trial on the court cannot stipulated to Balck by visiting reporting Clark and making him to so without allow do record longer to that Clark no wished meet to be sure that his waiver of his to right completely was police. Defense counsel testify knowing, intelligent, volun- at responsive slightly and was not even 26.01, tary. Minn. R.Crim. P. subd. 3. fault for lack of effective communica- All un- protections against of these fact, was tion. In their communication are personal autonomy wise exercise of consistently quite preventing effective defendant, ac- meaningless if a who has meeting police privately. from with Clark counsel, cepted persuaded by can be if police Defense counsel were clear that from meetings which police, private Clark, to meet with defense proposed effectively excluded, has been that counsel intervene, to attempt counsel would would counsel, need not to the advice he listen meet, or not to would be persuade Clark counsel, than police know better that having if insisted on a meet- present Clark police and that he talk to the with- should course, ing. Of the statement attributed counsel present. out Iversen, “washing that was her to she Clark, been hands” was said compare I this situation to would not last made on after the of Clark’s Ford, v. present that in State N.W.2d damaging already interviews had been (Minn.1995). There, the defendant re- simply and Iversen was concluded truly party initiated the con- who telephone message to the sponding Here, police. tact with Clark initiated con- evening of Balck left for her on the had only having been induced to do tact after August 3. by police, had undermined his con- so who Ford, ex- defendant I do not share the fidence counsel. Finally, concern talk “a about majority possible suggested about wanted pressed by urgency police matter of and a and death began life Clark. those contacts situation,” suggesting urging ignore that he wanted to Clark to his counsel and directly police, in something suggesting talk about other than his precise in the mechanism that volvement crime and some Clark needed to Clark, emergency might 223. to avoid the exist. Id. at use involvement of his counsel hand, clearly asking misleading believing on the other into police police talk their were follow-up protecting invita his inter- best story” tion to “call us back to ests. And when tell this so defense counsel inter- they “help strategy, could fered with that up.” by intervening clear [him] case is akin v. protect they given Clark’s more Clark whenever State were Left hand, (Minn.1992), a proposed meeting, county 488 N.W.2d 799 where notice of attorney took egregious the facts were and the adminis defense of the counsel out justice compromised. picture by authorizing tration had been to meet egregious And case at a when is even more time defense had not counsel Miller, than v. actual State 600 N.W.2d 457 received notice and thus was not (Minn.1999), effectively present. because the able to to by- state These efforts precluded attending pass Clark’s counsel from defense counsel effectively eliminated interrogation, right custodial whereas Miller Clark’s counsel. only prevented

the state from at counsel The efforts of the to induce Clark interrog tending voluntary, noncustodial right present waive to have counsel See 600 N.W.2d ation.2 interrogations for future are violations also against I would hold that the defendant’s the violation Rule related compelled sufficiently 4.2 was self-incrimination under egregious warrant Fifth Amendment suppression of of the States post-arraignment United I, § and art. police. statements to 7 of the Minne Constitution sota Constitution. The United Su States II. preme has held Court violate a if Even we were suppress not to Clark’s right against defendant’s compelled self- post-arraignment police statements to be- continuing interrogation incrimination 4.2, cause of violation of I Rule would after a defendant to right asserts his coun Illinois, hold that sup- 91, statements be 94-95, sel. Smith v. should 469 U.S. pressed 490, (1984) because the state also violated 105 S.Ct. 83 L.Ed.2d (citing 488 counsel, right Arizona, to 484-85, under the Sixth v. 451 Edwards U.S. (1981)). Amendment of the United Constitu- 101 States S.Ct. L.Ed.2d 378 I, § tion and art. that, of the Minnesota have And we held after a defendant police counsel, Constitution. The engaged per- requests the interrogating officers sistent efforts to questions undermine role of all must cease “ones except de Clark’s defense counsel beginning signed clarify from the desires [defendant’s] to the end of the counsel,” state’s contacts with regarding presence of Miller, recognized 2. we In Rule 4.2 ignore that fo- ment inducements of Clark to his prosecuting cuses the conduct of testimony attor- But the counsel. that con- Frazer ney, prosecut- but we also confirmed that the tacted Balck even before defense counsel was ing attorney will responsible appointed be held for the and that Balck authorized Au- police attorney gust conduct of if the knowing or ordered 3 interview that counsel defense ratified it. 600 N.W.2d at 464. It could be opportunity did not have notice or an to at- tend, argued egregious here that the most conduct is sufficient to show that ordered Balck police pre-arraign- was that police. in their the conduct ratified represented defen- to induce statements induce “designed that statements interrogation agree dant to to later with- talking im- [are] continue [defendant] Hannon, present. out his counsel 636 N.W.2d at State v. proper.” condemned, fact, as im- In we have 806. egregious Given the violations of Rule inducements, statements are proper 4.2, suppress I second would offensive, to, than even less similar the August statement and 3 statement of by Frazer and Doran to made statements necessary, police. If I would Munson, we de- said Clark. for violations of reach the same result of oppor- reference to “window tective’s rights repre- Clark’s constitutional be if the closing be defen- tunity” would by counsel and to be free of com- sented questions to answer dant did continue I would further pelled self-incrimination. attempt impermissible an induce hold that the admission those state- waiver coun- the defendant’s error, necessitating prejudicial ments was And in at 140-43. Han- sel. 594 N.W.2d a new trial. non, statements we said story [the] that a defendant’s “side of PAGE, (dissenting). Justice impermis- never be known” was [would] join I in the dissent of Justice Hanson. inducement. 636 N.W.2d sible Here, far and Doran were more Frazer MEYER, (dissenting). Justice than the officers in Hannon or forceful Munson, join I in the dissent of Justice Hanson. stating: only way you get this “And PAGE, (dissenting). Justice gonna you if call us story out is

whole and ask talk to us. join I I in Justice Hanson’s dissent. ad- to make a number of separately

write points. ditional The court excuses tell you But can call us back to stating misconduct “based state’s story. law, Balck reason- existing our case could ably obligation that his un- have believed you us, if call I And don’t [Doran] lawyer 4.2 provide der Rule just proceed with what we we’ll opportunity pres- and an to be with notice know, already okay? And what other post-arraignment ent at the interviews.” saying. people are without The court makes that statement why Balck’s belief any explanation to Time’s of essence. plain, Given the could be reasonable. * * * * clear, unambiguous language of Rule you you so know—if don’t call— Just 4.2, required only that rule any belief the job keep do then we have to our opportunity present notice and the be people ahead with what other plugging pro- The reasonable. rule could not be told have us.” vides: client, a lawyer In shall precluded making representing from

If the are subject of about the communicate types of statements to induce these person the representation the unrepresented to continue talk- defendant an- represented by knows to be asserting right lawyer his have ing without matter, the lawyer in the unless equally are other present, then counsel the law- lawyer the other making types of has consent from these precluded 356

yer actually by required, or is authorized to do so law or a the state nonetheless en- Although court order. gaged serious misconduct. there is some the record that indication Minn. R. 4.2 (emphasis Prof. Conduct. add- attorney may Clark’s have had notice1 of ed). three to Comment the rule further the 26 communication second between applies though clarifies: rule “The even Doran, Clark, Frazer, and there has been person represented the or con- initiates showing no that Clark’s counsel had the sents to the communication.” Minn. R. Furthermore, opportunity present. be Prof. 4.2 cmt. (emphasis Conduct. add- nothing there is in the record us ed). before support that would conclusion rule, in its simplicity, cannot be counsel adequate Clark’s ever received no- require only read to state along with opportunity pres- tice to be obligated provide oppor- notice and the during the ent communications. tunity to present be Clark’s counsel. Thus, there compli- was no demonstrated Miller, Nor can our case law. In we clear- allegedly ance what Balck thought ly “only party’s attorney stated that rule be. can approve only the direct contact and attorney the party’s can waive the attor- are final points There two must be ney’s present right during commu- be First, made. the court focuses on the attorney’s nication between client and “poor communication” both sides and Miller, opposing counsel.” State v. “repeated! attempts] Balck’s to meet ] (Minn.1999). N.W.2d This lan- reasonably what he to be pro- believed guage requires opposing ob- counsel obligations.” To fessional the extent that tain party’s attorney’s approval both the opinion the court’s be read may suggest for direct attorney’s contact client attorneys’ failure to respond Clark’s and the attorney’s right waiver of the to be purported opportunity notice and present during the communication with the present during be communications attorney’s Approval client. and waiver issue constitutes consent sufficient to miti- necessarily require party’s attorney to gate misconduct, there is no basis affirmatively act. No action affirmative Second, the law for such a I suggestion. if required by oppos- would be mere notice compelled explicitly feel to state that the ing counsel opportunity pres- violation 4.2 state’s of Rule cannot be ex- Here, ent were nothing sufficient. there is mitigated or cused the fact that Balck in the record that would support con- may have been frustrated the manner approved clusion that attorney attorneys responded which Frazier’s and Doran’s direct contact with responses the substance of those to the Clark or attorney that Clark’s waived the efforts to state’s communicate with Clark. present during any to be of the com- fact, comment Rule specifical- six to 4.2 munications at issue. ly provides may that a lawyer seek a court legitimate

Even if there some were basis order to authorize communication with reasonably Balck to represented person believed that if “uncertain” whether only under along Rule 4.2 notice with the such permissible communication would be opportunity present required, “exceptional to be or in circumstances.” Minn. indeed, if in fact was all the rule R. Prof. Conduct. cmt. 4.2 6. Counsel’s Handley positively arraignment. 1. Neither nor Balck re- they spoke day member whether on the mitigate a violation frustration does rule; rather, failure to seek counsel’s misconduct. aggravates

court order reasons, I respect- additional For these fully dissent. WOODHALL, Jr., al., et

John A. petitioners, Appellants,

v. Minnesota, Respondent, STATE Minnesota, by its Commis State of Transportation, peti sioner Respondent, tioner,

v. Company, City and Feed Grain Grove Below, Respondent Pieh, al., Appellants. Timothy R. et A05-2424, A05-2525. Nos. Supreme Court Minnesota. Sept.

Case Details

Case Name: State v. Clark

Court Name: Supreme Court of Minnesota

Date Published: Sep 13, 2007

Citation: 738 N.W.2d 316

Docket Number: A06-1765

Court Abbreviation: Minn.