Opinion
A21-0747
03-08-2022
State of Minnesota, Respondent, v. Robert Herman Larsen, Appellant.
Lincoln County District Court File No. 41-CR-19-214
Considered and decided by Frisch, Presiding Judge; Gaïtas, Judge; and Klaphake, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
ORDER OPINION
ROGER KLAPHAKE, JUDGE
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Appellant Robert Herman Larsen argues his limited right to counsel was violated because the state trooper booking him after arrest at the county jail gave him only 23 minutes to contact attorneys while at the police station. Because this question was not argued before or decided by the district court, it is not properly before us on appeal.
2. "[A]n undecided question is not usually amenable to appellate review." Hoyt Inv. Co. v. Bloomington Com. & Trade Ctr. Assocs., 418 N.W.2d 173, 175 (Minn. 1988); see Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts generally address only those questions previously presented to and considered by the 1 district court). This includes "constitutional questions of criminal procedure." Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996); see also State v. Brunes, 373 N.W.2d 381, 386 (Minn.App. 1985) ("Because appellant did not raise these issues at the omnibus hearing, it has waived them and their appeal is not properly before this court."), rev. denied (Minn. Oct. 11, 1985). This includes issues of constitutional criminal procedure.
3. Here, the district court did not consider whether the trooper violated Larsen's limited right to counsel. At the omnibus hearing on the motion to suppress, Larsen's counsel stated that the right-to-counsel violation was one of five issues to be litigated. But counsel then asked to submit written memoranda instead of oral argument and did not identify nor argue this issue within that memorandum, instead expressly listing only the four other issues he had previously verbally identified at the hearing. The state responded to only those four issues in its own memorandum, and the district court issued an order and accompanying memorandum denying Larsen's motion that only addressed the other four issues raised in the parties' written memorandum. At most, Larsen's district court brief and the district court's order both merely recite the fact that the trooper ended the attorney time after approximately 20 minutes; neither addresses whether doing so violated Larsen's right to counsel. Thus, the issue of whether the trooper violated Larsen's right to counsel is not amenable to appellate review.
4. Larsen also argues that the district court erred in concluding that the trooper's failure to record the entirety of his custodial interrogation at the county jail was not a substantial violation of State v. Scales, 518 N.W.2d 587 (Minn. 1994). It is not clear 2 whether Larsen was subject to a custodial interrogation here, but we decline to reach that question and affirm the district court because the alleged violation was not substantial.
5. Scales requires that "all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention." Id. at 592. If a violation of the recording requirement is "substantial," any statements obtained from the interrogation must be suppressed. Id. We review de novo whether a substantial violation of Scales occurred. State v. Critt, 554 N.W.2d 93, 95 (Minn.App. 1996), rev. denied (Minn. Nov. 20, 1996).
6. In analyzing this issue, we examine the circumstances relating to substantiality. Scales, 518 N.W.2d at 592. These factors include: (1) the willfulness of the violation; (2) the extent of the deviation from lawful conduct; (3) the extent to which the violation was likely to have led the defendant to misunderstand his legal rights; and (4) the extent to which the statement is likely to have prejudiced the defendant's ability to defend himself in the proceeding in which the statement will be used. Id. at 592 n.5.
7. On the first factor, the willfulness of the violation, the district court observed that the trooper "testified that he is uncertain why the recorder stopped recording but that it was not intentional." Though Larsen states the recording ended "under suspicious circumstances," he does not argue that the violation was willful. And there is no evidence from the hearing that indicates the trooper intentionally ended the recording. Thus, this factor weighs in favor of the state. 3
8. On the second factor, the extent of the deviation from lawful conduct, the district court found that the recorder stopped recording "[a]pproximately 25 minutes and 33 seconds into the interview." The trooper testified that the last "two or three minutes" of the interview were not recorded. In a nonprecedential case where we considered a similar issue, we concluded this factor weighs in favor of neither the state nor the defendant where there was no evidence in the record as to the length of the entire interview and, thus, no evidence from which we could ascertain the length of the unrecorded portion of the interview. State v. Mason, No. A08-0620, 2009 WL 1918722, at *3 (Minn.App. July 7, 2009), rev. denied (Minn. Sept. 16, 2009). Here, unlike Mason, most of the interview was recorded; of the approximately 28-minute interview, only two or three minutes went unrecorded at the end. Thus, this factor weighs in favor of the state.
9. Both Larsen and the district court skip the third factor for the fourth factor, the extent to which the statement is likely to have prejudiced the defendant's ability to defend himself in this proceeding. The district court concluded the Scales violation did not prejudice Larsen because he "simply argues that the remainder of the interview should have been recorded so that his counsel could review what was said," and he "does not argue that he did not consent to a breath test or that any of his rights were violated." Larsen argues the violation prejudiced his ability to defend himself in this proceeding because the recorded portion of the interview does not contain several important pieces of evidence, such as Larsen taking the chemical breath test and the trooper and Larsen discussing the possibility of Larsen taking another kind of chemical test. 4
10. The touchstone for evaluating whether a Scales violation prejudiced a defendant is determining whether the defendant created a factual dispute at the evidentiary hearing about the existence or validity of evidence that was not recorded because of the violation. See State v. Inman, 692 N.W.2d 76, 81 (Minn. 2005) ("Had [the defendant] claimed at the omnibus hearing that a Miranda warning was not given or that he had not waived his Miranda rights, the dispute created by his allegations would have gone directly to the stated purpose of the Scales requirement," and the "lack of a recording would have been prejudicial to his case."). Here, Larsen does not dispute that he took the chemical breath test. Instead, he argues "[t]here is a factual dispute here" because "[a]lthough [he] did not clearly testify that he asked [the trooper] for a blood or urine test after failing the breath test, [he] did request a blood or urine test after he failed the breath test." Larsen does not explain how this alleged factual dispute prejudiced him in the proceeding. Regardless, Larsen's argument fails for two reasons.
11. First, Larsen misstates the record. Larsen argues his request for a blood or urine test creates a factual dispute here because "[the trooper] said [Larsen] did not ask for an additional chemical test, although [the trooper] did not testify on the subject." Larson is wrong. The trooper was expressly asked: "Did Mr. Larsen ask to conduct a urine test or a blood test?" and answered: "I believe at one point he requested a blood test." The trooper's testimony is consistent with Larsen's own testimony, in which Larsen states he asked to take a blood or urine test. Thus, there is no such factual dispute here.
12. Second, in Inman, the supreme court expressly rejected the possibility of a defendant raising a factual dispute for the purposes of a Scales violation at any time later 5 than the evidentiary hearing on the issue. Inman, 629 N.W.2d at 81. There, the defendant argued he had raised a factual dispute at trial that went to the Scales violation, and the supreme court rejected that argument, stating: "We believe the relevant time to create a factual dispute is at the omnibus hearing where the Scales issue was raised and decided." Id. Therefore, even if there was a factual dispute here, Larsen could not raise that factual dispute for the first time on appeal where-as he himself acknowledges-"[he] did not clearly testify" about that dispute at the hearing. Therefore, because Larsen fails to show he was prejudiced by the Scales violation, this factor also weighs in favor of the state. Thus, even if there was a Scales violation here, it was not substantial.
IT IS HEREBY ORDERED:
1. The district court's order is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel. 6