State v. Doughty
456 N.W.2d 445
Minn. Ct. App.
1990
Check Treatment

*1 Minnesota, Appellant, STATE of DOUGHTY, Respondent.

Jоhn William No. C7-89-1934. Appeals Court of of Minnesota. May 1990. July Review Granted III, Humphrey, Atty. Gen.,

Hubert H. Foley, Ramsey County Atty., Tom Mark Lystig, County Atty., Nathan Asst. St. Paul, appellant. Falvey, Ramsey County

William E. Pub- Defender, Coleman, lic Richard J. Asst. Defender, Paul, respondent. ‍‌​​‌‌​‌‌‌‌​​‌​‌‌‌​​‌​​​‌‌​​‌​‌​​​​​‌‌‌‌‌‌‌​​​​​‌‍Public by RANDALL, Considered and decided P.J., GARDEBRING, and SHORT and JJ.

OPINION

GARDEBRING, Judge. appeal pre-trial This is from a order find- ing a confession was in violation obtained 427 N.W.2d 217 (Minn.1988), suppressing all evidence derived from confession. We affirm. *2 formally report the offense. not want FACTS “tip,” the The officer who received Ser- Doughty was arrested John Respondent DeNoma, provided using geant information police on November Park by St. Louis father, Doughty’s by the victim’s obtained he had probable cause that on based the victim’s em- name and address from kidnapping and assault a committed suspects. possible as one of two ployer Doughty was in Louis Park. bеgan St. transported warning, given Miranda and testify a at Sergeant the DeNoma department. police Park the St. Louis hearing. Paul Another St. investi- omnibus the St. There, questioned about that, he was Sergeant Pye, testified the gator, Park offense. Louis police, Park he request of the St. Louis (twо days twice on November checked Dough- interviewing testified officer confession) Doughty’s and there was after said, assault, “I denied then ty at first of the on file. no incident Satan,” needed to explaining he did it for then Doughty for a sacrifice Satan. make Doughty’s kid- arrest for “Satanist” officer, ‍‌​​‌‌​‌‌‌‌​​‌​‌‌‌​​‌​​​‌‌​​‌​‌​​​​​‌‌‌‌‌‌‌​​​​​‌‍away and asked turned napping generated considerable and assault don’t attorney you I an “Shouldn’t response publicity, In to the Oli- publicity. illegal questions?” The officer any ask me Weir, employer of ver former both response. the officer made no victim, Doughty and thе called St. testified: 17, 1988. police on November Ser- Paul say any- I not to A And as continued charge geant Pye, who was in of inves- at me and thing, then he looked over confession, Doughty’s tigation prompted by I said, And you do think?” “What Doughty this call. told him returned Weir my re- you responded want he had mаde had been terminated because —Do sponse? waitresses, harassing phone calls to two response? Q your Yes. What was of gave Pye. names he One whose victim, in an- waitresses was the St. Paul S.C. responded A And I was—it day Pye I the same as Weir’s discov- or less. On to his more swer Sergеant report prepared by in De- very “Pm interested ered the responded, story.” Noma. hearing your side of the request an explicitly not more

Doughty did Meanwhile, led Doughty had St. Louis on the details attorney, and went to discuss police to the of the St. Paul Park site Louis Park offense. оf the St. again were offense. result, Sergeant Pye As a inter- tacted. statement, relating an informal After mother, later the victim viewed S.C.’s kidnapping and Louis only to the St. Park herself. warning, assault, and a second Miranda statement, taped Doughty gave a formal Doughty charged Ramsey County in he he had committed during which revealed in the burglary two counts first of Doughty de- offense St. Paul. another degree, and one of assault count occurred offense and said it scribed the degree. ruled second The trial court Following the formal late October Dough- violated St. Louis had statement, notified. Paul St. rights on ty’s fifth sixth amendment stat- later and They called back a half-hour by equivo- clarifying his November on such an they no ed had information The court cal reference counsel. also offense. required that this violation determined it, suppression of all dеrived from evidence offense, the In trial on the Paul to show the evi- and that the state failed heáring omnibus state introduced an been “in- of the assault would have dence report” of that “supplementary exhibit evitably discovered.” (the date October offense dated offense). report, the According to this ISSUES incident, reported victim’s father had err in the trial court rul- county attor- 1. Did day, to an the same assistant interrogation respondent ing violated connecting suspect ney, hope “in however, did v. Robinson? family, other offenses.” 2. Did the court lation. Thе argues state that the deriva- the derivative evidence rule to a Robinson tive evidence rule apply does not to Mi- violations, any violation? randa or to amend- fifth ment violation. 3. Did the court argument The state’s evidence St. Paul assault would not that the derivative evidеnce rule does not inevitably any have been discovered without the fifth *3 amendment violation violation? has no merit. The

derivative frequently evidence rule has applied been to non-Miranda fifth amend ANALYSIS See, ment e.g., violations. United States v. I. 868, (9th Martinez-Gallegos, 807 F.2d 870 The trial Doughty’s ques court held Cir.1987); see also United v. Bengi officer, tion tо the St. Louis Park 593, (5th venga, Cir.) (deriva 845 F.2d 601 I attorney you “Shouldn’t have an don’t tive evidence applies only to “actual any illegal ask me questions?”, could be constitutional in violation” a fifth amend request counsel, construed as a for mean case), denied, 924, ment cert. 488 U.S. 109 ing, Robinson, under v. State 427 N.W.2d 306, (1988). S.Ct. 102 L.Ed.2d 325 Our 217, (Minn.1988), 223 supreme applied court has the derivative questioning stop except all further must evidence rule to a violation of Edwards v. questions designed that narrow Arizona, 477, to ‘clari- 1880, 451 U.S. 101 S.Ct. 68 fy’ respecting the accused’s true desires (1981), L.Ed.2d 378 which is a fifth amend may counsel ‍‌​​‌‌​‌‌‌‌​​‌​‌‌‌​​‌​​​‌‌​​‌​‌​​​​​‌‌‌‌‌‌‌​​​​​‌‍continue. Warndahl, ment violation. State v. 436 770, (Minn.1989). N.W.2d 775-76 Because the St. Louis officer attempt clarify question, to but instead upon The Michigan state relies v. Tuck encouraged Doughty talking to continue er, 433, 445, 2357, 2364, 417 U.S. 94 S.Ct. assault, about the trial court held Rob- (1974), 41 L.Ed.2d 182 and Oregon v. El pre-trial inson violated. ruling was Such a stad, 298, 309, 1285, 470 U.S. 105 S.Ct. only is reversed whеn the state 1293, (1985), 84 L.Ed.2d 222 in which the unequivocally demonstrates it to be errone- Supreme Court held it would not Kim, ous. Kyu State v. Joon 398 N.W.2d derivative evidence rule to exclude the 544, (Minn.1987). 547 fruits of a Miranda violation where the statement elicited from the accused supreme

The court in State v. knowingly voluntarily 223, made. In nei- equivocal 427 N.W.2d held “an or cases, however, ther of these was the ambiguous fifth concerning statement” counsel request amendment violation related to a triggers the rule announced in that case. counsel; cases, for instead both phrasing Doughty’s comment in the sought suppressed statements to be oc- sufficiently form of a does not procedural curred after violation of the distinguish this case. The trial court did Therefore, quirements of in or- Miranda. finding a Robinson viola succeed, argument der for its the state note, however, tion. We the trial equate violation Robinson with a indicating court did err in there was a sixth Miranda violation. we cannot amendment violation. See State v. Ron join making leap. state in nebaum, 722, We (Minn.1990) 449 N.W.2d 724 conclude that a Robinson violation must be (sixth right amendment to counsel attaches treаted as a constitutional violation which prosecution commences, formally when the subject to the derivative evidence rule. by filing complaint). court, supreme developed by As our II. Robinson rule is not an extension of the warnings requirement The state contends the trial сourt contem- ‍‌​​‌‌​‌‌‌‌​​‌​‌‌‌​​‌​​​‌‌​​‌​‌​​​​​‌‌‌‌‌‌‌​​​​​‌‍Miranda Rather, poraneous erred the “fruit of the with arrest. it is a rule doctrine, poisonous designed implement tree” also known as Edwards v. Ari- rule, 477, 1880, zona, derivative evidence to a vio- 451 U.S. 101 S.Ct. 68 Robinson III. (1981), requires custodi L.Ed.2d once an accused has interrogation cease al the trial court The state contends right counsel. his See invoked clearly erred duty 222. The Robinson, 427 N.W.2d at inevitably have discovered the counsel, request ambiguous for clarify an the St. Louis Park Paul offense without amendment basis the fifth it shares while confession. Miranda, nothing to may have do Supreme Court Nix United States itself; warning Miranda with the Williams, See, may trigger request. warning (1984), adopted “inev- 81 L.Ed.2d Howard, 324 N.W.2d e.g., discovery” exception the deriva- itable (Minn.1982) (defendant freely talked after However, neither that rule. tive evidence warning, requested only counsel Miranda suрreme has en- our own court Court nor * * * conversation,” end of the “[n]ear determining precise test for dorsed a more against police revealed their evidence when has discovery shown. when inevitable been denied, him), *4 cert. Rodewald, See, e.g., v. 376 N.W.2d short, (1983). 818, In the 74 L.Ed.2d 1016 416, (Minn.1985). 422 step, has taken a how defendant Robinson following three-prong Doughty cites the invoking his fifth equivocal, ever towards circuit developed test in some federal right, the de amendment unlike Miranda courts: fendant, of merely has been who informed (1) the evi- probability a reasonable that right. his fifth аmendment would have been dis- dence Thus, preventive. is rule Robinson by means for the covered lawful but though may even there a be found violation misconduct, (2) mak- police that the leads unequivocal request for coun- no has been pos- ing discovery inevitable were the sel, actual violation of the therefore no and police of by the at the time the sessed right to counsel. Ed- fifth amendment Cf. misconduct, (3) police also that the 484-85, Arizona, 101 U.S. at 451 wards v. prior actively the misconduct were counsel, (request for 1884-85 investiga- line pursuing the alternate of right, must be amendment invoke fifth tion. Nevertheless, unequivocal). the clear and 1196, Cherry, F.2d 759 United States an alterna- rationale is stated as Robinson Cir.1985); (5th also 1204 see United are approaches other not tive to two (11th Cir.1984), 743 F.2d 827 Satterfield, rules, ways of ana- preventive but rather 1117, denied, 471 cert. U.S. unequivocal a lyzing clear whether cannot, (1985). 262 The state as 86 L.Ed.2d been made. State v. quest for counsel has third, argues, the or “active Doughty meet 222-23. If either 427 N.W.2d at However, pursuit” prong of test. we “totality circum- “bright line” or of the the ground, upon do not our decision base met, id., a fifth see stances” tests three-prong upon adoption of the or the be found and amendment violation would test. apply. rule would the derivative evidence “supple- De police the Noma St. Paul had out in protections of set While each the offense mentary report” of St. Paul and Minnesota Constitu- ‍‌​​‌‌​‌‌‌‌​​‌​‌‌‌​​‌​​​‌‌​​‌​‌​​​​​‌‌‌‌‌‌‌​​​​​‌‍the United States Doughty confessed. before right important, tions is we believe is unclear. On at status of that It so underlies all rest. to counsel Doughty’s confes- least two occasions after possible strongest fundamental sion, find the police were unаble to St. Paul respond to a remedy employed be must Sergeant Noma report. De himself Robin- right. of this Because the violation testify. plainly from the consti- springs rule son counsel, received, entirely in- police also right protected we tutionally confession, Doughty a dеpendent of the did trial court conclude the employer former phone from the a call evidence derivative call, phone This how- Doughty. victim and Robinson violation.

449 ever, telephone police inevitably while it related harassment would have discoverеd given the offense. could by identify could Weir’s call have Doughty, victim no police Doughty’s specific no name but con Doughty. by More- assaultive behavior suspected nection to a crime. over, noted, as the trial court Cf. Seefeldt, (Minn.1980) 292 N.W.2d not, response did to this (deputy alreаdy had made connection be employer the other waitress tact whom crime). specific tween defendant and Fur named. ther, Sergeant did testify, DeNoma Finally, there publicity was considerable leaving only speculation the trial court with concerning Doughty’s arrest. The triаl to the exact status of his month-old court, however, it was specu- concluded too report. Finally, because did not fol presume family lative to the victim’s would low-up phone Weir’s with respect call to the reported have after reading the offense waitress, оther did state not show S.C. these accounts. would have been illegal called without the Doughty discovery” exception statement. “inevitable See United States v. White, F.Supp. (D.Ill.1982) “necessarily reasoning hypo entails about (attorney’s testimony investigative of what contrary theticаl circumstances to fact.” steps would taken legally- have been Feldhacker, United States v. F.2d acquired by govern evidence belied (8th Cir.1988). an inquiry Such ment’s lead). actual “total non-use” degree speculative. to some Yet be fact, hypothetical conduct that DECISION evidence, legally to the led The trial court did not preponderance must be by established *5 suppressing all evidence derived from re- Williams, the evidence. Nix U.S. at spondent’s confession. 444, 104 S.Ct. at We conclude the Affirmed. court did trial state failed to meet this burden. SHORT, Judge (dissenting). First, agree we the trial court’s I respectfully dissent. trial court’s speculative that it conclusion is too to as- suppression order is erroneous be- family would sume victim’s have re- respondent’s cause statements volun- ported declining after earlier crime tary and the dictates of Miranda v. Ari- formally argues do so. The state that the zona, derivative evidence rule should not (1966) L.Ed.2d 694 were followed. if Even testimony the “fruit” is where a live trial in suppressing court was correct Ceccolini, witness. See United respondent’s statements, the suppression U.S. L.Ed.2d 268 because order be reversed it is too (1978). However, supreme court broad and takes the derivative evidence only held live witness Ceccolini testi- beyond its useful limits. The deter- mony being suppressible at stake as excluding all rence value evidence de- determining “fruit” was a factor in wheth- alleged rived from this Robinson violation the “taint” from er misconduct negligible best where St. Louis 278-79, had attenuated. Id. at 98 S.Ct. at suspect had no reason to 1061-62. Attenuation of taint is not an spondent had committed other offenses and case, issue questioned him concerning directly through discovered thе victim impromptu those activities absent his Moreover, “tainted” confession. the Su- least, very At the fession. case should

preme rejected Court in Ceccolini the abso- remanded for the evidence be trial on exemption testimony lute of live witness “compelled testimony” respon- poisonous from the “fruit of the tree” dent. doc-

trine.

Second, did not trial court that, concluding with the De even Noma phone and the Weir