2010-M-145             State of Minnesota, Respondent, vs. Jose Miguel Chavarria-Cruz, Appellant.

MAJORITY:  José Miguel Chavarria-Cruz was convicted of second-degree intentional murder for the benefit of a gang.  Chavarria-Cruz confessed to the crime during a custodial interrogation.  At his trial, he argued that the confession was obtained in violation of his right to have an attorney present during questioning and moved to have the confession excluded from evidence.  The district court denied the motion and admitted the confession, crediting the interrogating officer’s testimony that he did not recall hearing Chavarria-Cruz’s attempt to invoke his right to counsel.  The court of appeals affirmed Chavarria-Cruz’s conviction, and we granted his petition for further review.  We reverse.

First, where the State asserts that a suspect did not invoke the right to counsel during custodial interrogation because the suspect did not speak loudly enough to be heard, the applicable test is whether the suspect articulated his desires to have counsel present sufficiently clearly so that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.

Second, a reasonable officer would have heard the defendant’s request for a lawyer in this case, and the district court’s error in admitting a confession that was obtained after the request had been made was not harmless.

CONCUR:  Justices Gildea and Dietzen opined:  “I agree with the result reached by the majority, but I reach this result on different grounds.  I would hold that the State did not meet its burden of proving that appellant waived his right to counsel, and that therefore the admission of his confession was error.

First, I address what in my view is the majority’s departure from our precedent on the standard of review applicable in this case.   The majority concludes that the district court’s “determination” of “whether a suspect successfully invoked the right to counsel during a custodial interview” is a mixed

question of law and fact.  But we have previously held that a determination of “whether an accused invoked his right to counsel” is a “factual finding]” that “we will uphold . . . unless it is clearly erroneous.”  State v. Hannon, 636 N.W.2d 796, 804 (Minn. 2001); see also State v. Munson, 594 N.W.2d 128, 139 (Minn. 1999) (“In reviewing the trial court’s factual findings, including whether an accused invoked his right to counsel, we will uphold a trial court’s determination unless it is clearly erroneous.”).

Second, the majority also concludes that the application of the reasonable officer standard to the facts receives de novo review.  The majority cites State v. Ray, 659 N.W.2d 736, 742 (Minn. 2003), for this proposition.  I find no support in Ray for the majority’s articulation of the standard of review.

Third, the majority attempts to find support for its standard of review in State v. Anderson, 396 N.W.2d 564 (Minn. 1986).  But the issue for appellate review in Anderson was not whether the defendant, as a factual matter, had invoked his right to counsel, which is the issue under review here.  The question for appellate review in Anderson was whether the defendant’s confession was voluntary.  Id. at 565.  I do not disagree with the majority that the appellate court “independently” reviews the question of voluntariness.

Fourth, in my view, it is not necessary to depart from precedent to resolve this case. 

Fifth, it likewise is not necessary for us to write a new rule.  We have repeatedly recognized that

the State has the burden to demonstrate that the defendant waived his right to counsel in order for the State to admit the defendant’s custodial statements.

But given the State’s admission that its transcript of the interview was accurate, I would hold that the State did not meet its burden of proving, by a preponderance of the evidence, that appellant waived his right to counsel.  I therefore would reverse and remand.   

Magnuson  (Page, Paul Anderson, Meyer, and Barry Anderson)

               Concur:  Gildea and Dietzen

               [MURDER]