2011-M-175             State of Minnesota, Respondent, vs. Danny Ortega, Jr., Appellant.

MAJORITY:  Appellant Danny Ortega Jr., following a jury trial, was convicted of aiding and abetting first-degree premeditated murder in the stabbing death of Troy Ulrich.  Appellant challenges his conviction on appeal, arguing that the district court erred when it denied his pretrial motion to suppress statements made to law enforcement officials after appellant allegedly invoked his state and federal constitutional rights to remain silent and to have counsel present during custodial interrogation.  We affirm.

First, an invocation of the right to remain silent is ambiguous if the suspect ‘s statement could be interpreted as either a general refusal to answer any questions or as an expression of unwillingness to discuss a specific topic.

Second, the district court did not err when it denied appellant ‘s motion to suppress statements made to law enforcement officials because appellant did not unambiguously invoke his right to silence.

Third, when a suspect makes an equivocal invocation of the right to counsel, providing the suspect with a Miranda warning is sufficient as a matter of law to satisfy the “stop and clarify” rule.

Fourth, the district court did not err when it denied appellant ‘s motion to suppress statements made to law enforcement because the agents properly clarified appellant ‘s ambiguous request for counsel.

Affirmed.

CONCUR & DISSENT:  Justices Page and Paul Anderson opined: “I concur in the result reached by the court in today ‘s decision.  I respectfully dissent, however, from that part of the decision holding that the trial court did not err when it allowed into evidence Ortega ‘s statements to the BCA agents.  Under our case law, the statements were inadmissible because Ortega unequivocally invoked his right to remain silent and because the agents failed to stop and clarify Ortega ‘s equivocal invocation of his right to counsel.

I conclude that the trial court erred when it allowed into evidence the statements Ortega made after he unequivocally invoked his right to remain silent as well as all of the statements Ortega made during the interrogation after the police failed to stop and clarify his desire to invoke his right to counsel. 

I also conclude, however, that on the record before us, the errors were harmless beyond a reasonable doubt because, given the other evidence of Ortega ‘s guilt produced at trial, the jury ‘s verdict was surely not attributable to the errors.  On that basis, I also conclude that Ortega ‘s conviction is properly affirmed. 

Barry Anderson (Gildea, Meyer, Dietzen and Stras)

               Concur& Dissent:  Page and Paul Anderson

[MURDER]