STATE OF MINNESOTA
IN SUPREME COURT
A13-1624
Washington County Dietzen, J.
State of Minnesota,
Respondent,
vs. Filed: April 22, 2015
Office of Appellate Courts
Thomas James Fox,
Appellant.
________________________
Lori Swanson, Attorney General, Saint Paul, Minnesota; and
Peter Orput, Washington County Attorney, Robin M. Wolpert, Assistant County
Attorney, Stillwater, Minnesota, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant
Public Defender, Saint Paul, Minnesota, for appellant.
________________________
SYLLABUS
1. The district court did not err in denying appellant’s motion to suppress the
statements he made to police because appellant validly waived his Miranda rights under
federal and state constitutional standards.
2. The district court did not err when it declined to give appellant’s proposed
jury instruction on circumstantial evidence.
3. The State presented sufficient evidence to support appellant’s convictions.
1
4. The claims in appellant’s pro se supplemental brief are without merit.
Affirmed.
OPINION
DIETZEN, Justice.
Appellant Thomas Fox was found guilty by a Washington County jury of first-
degree premeditated murder and first-degree felony murder arising out of the December
2011 stabbing death of Lori Baker. The district court entered judgment of conviction on
both counts and sentenced Fox to life imprisonment without the possibility of release on
the first-degree premeditated murder conviction. On direct appeal, Fox argues that the
district court erred because (1) the court denied his motion to suppress statements he
made to police; (2) the court failed to give his proposed circumstantial evidence
instruction to the jury; and (3) the evidence is insufficient to support his conviction of
first-degree premeditated murder and first-degree felony murder. Because we conclude
that Fox’s arguments lack merit, we affirm.
On the morning of December 28, 2011, Oakdale police responded to a call that the
body of Lori Baker had been discovered in her apartment. Upon their arrival, police
found the victim’s body on the bedroom floor, covered by a comforter “soaked with
blood.” A Bureau of Criminal Apprehension (BCA) crime scene team processed Baker’s
apartment. The BCA found blood spatter on the wall, what appeared to be laundry
detergent throughout the bedroom, and empty containers of laundry detergent, rubbing
alcohol, and a cleaning product on the bedroom floor. Baker’s silver Mazda hatchback
was not found in the parking lot or garage.
2
Police learned that Fox was dating Baker and that Fox stayed in Baker’s apartment
some of the time. A woman who lived in the apartment directly below Baker’s unit told
police that she heard stomping noises and then repetitive, loud screaming that lasted
about 10 minutes coming from Baker’s apartment around 11:00 p.m. on December 27.
Additionally, Baker’s debit card had been used in about 48 transactions in 15
different locations between the evening of December 27 and the afternoon of December
29. Police obtained surveillance videos, which show Fox and a vehicle matching the
description of Baker’s vehicle involved in several of those transactions.
Fox was located and arrested on December 29, 2011, on a Department of
Corrections warrant unrelated to the Baker investigation. After his arrest, Fox was
interviewed by police officers. Before officers had an opportunity to give Fox his
Miranda rights, Fox volunteered, “Well this about, you know what I’m sayin’ my girl’s
car man you know you can tell her she lived with me . . . .” Officers interrupted Fox,
read him his rights, and Fox affirmed that he understood those rights. Fox then discussed
his use of Baker’s car, made statements regarding his use of Baker’s credit card, and
described his whereabouts since the crime. When officers informed Fox several minutes
later that Baker was dead and that they suspected Fox was involved, Fox expressed
disbelief and requested a lawyer. The officers did not ask any more questions.
The next day, Fox asked to speak with the police officers. At the beginning of the
interview, Fox was reminded of his Miranda rights and agreed to waive them. During
the interview, Fox informed the officers that he had contacted the Hennepin County
Public Defender’s Office earlier in the day, asking for representation, and was told that a
3
public defender could not represent him until he was formally charged. The police told
Fox they could not advise him and asked him if he wanted to talk to a lawyer. Fox stated
that he did not.
Unbeknownst to the police officers, two Washington County public defenders
talked to Washington County jail staff and asked to meet with Fox about 2 hours before
Fox’s interview with police. Jail staff did not permit the public defenders to meet with
Fox, but neither Fox nor the interviewing officers were aware of the public defenders’
attempt to meet with Fox.
Fox was indicted April 19, 2012, on one count of first-degree premeditated
murder, Minn. Stat. § 609.185(a)(1) (2014), and one count of first-degree intentional
murder while committing or attempting to commit aggravated robbery, Minn. Stat.
§ 609.185(a)(3) (2014).
Before trial, Fox moved to suppress the statements he made to the police on
December 29 and 30, on the ground that his Miranda waivers were not knowing or
intelligent. The district court denied the motions to suppress.
At trial, the State presented the testimony of police officers regarding the
discovery of Baker’s body, the crime scene, the debit card transactions, the events leading
up to Fox’s arrest, and the recordings of Fox’s two statements to police. BCA scientists
testified that one blood sample from the comforter produced a DNA profile consistent
with a mixture of DNA from two or more individuals. The predominant profile matched
Fox’s DNA profile. DNA profiles obtained from blood on Fox’s boots, stocking cap,
shirt, and jacket were consistent with a mixture of DNA from two or more individuals,
4
but Baker was excluded as a contributor to any of these mixtures. A carpet sample taken
from Baker’s bedroom contained compounds consistent with laundry detergent and the
white powder found in Baker’s bedroom was consistent with baking soda.
The medical examiner (ME) concluded that Baker died from exsanguination
caused by 48 stab wounds to multiple parts of her body. The ME observed blunt force
injuries to Baker’s body, including contusions around her left eye, abrasions on the back
of her head, and injuries consistent with someone placing a hand over her mouth. The
ME determined that the weapon used was “probably” a “kitchen type knife.” The ME
estimated time of death as between 12:30 a.m. and 4:30 a.m.
J.N. testified that Fox contacted her from the Hennepin County jail. During the
call, J.N. heard Fox say, “it was messed up what he did—what happened to Lori.” Fox
told J.N. that Lori was “just a woman that he had met that he was getting money from—
just getting money from, somebody like a cash cow.” T.W. testified that, sometime
before Christmas, Fox told him he “was having problems with Lori,” and that she gave
him an “ultimatum.” At the time, T.W. was living with T.G.
T.G. testified that, shortly before midnight on December 27, 2011, Fox came to
the house and asked for T.W. Fox asked T.G. if she was “ready for him” because “he got
rid of his girlfriend.” Fox also stated that “[h]e f---ed up” and that “he did her in.” T.W.
stated that when Fox returned to T.G.’s house around 6:00-6:30 a.m., his “behavior was
weird,” and that Fox was sucking on his hand and smoking crack cocaine. Fox told T.W.
that he had gotten the debit card from a woman in a “lick,” meaning a theft or robbery;
that he had the PIN for the card; and that he could withdraw money to pay T.W.
5
The State also presented the testimony of four informants who were in jail with
Fox. The first witness testified Fox told him that “he had killed someone.” The second
witness testified Fox told him his girlfriend was already dead when he found her and later
commented, “I can’t believe I gutted my platinum piece.” The third witness testified Fox
admitted that his girlfriend had wanted him to leave, that he killed her, and that “he didn’t
mean to do in his platinum piece.” The fourth witness testified Fox told him “he had left
his ID there and she found out his real name. She wasn’t happy about it. And they
argued. Things happened.”
After the close of evidence, the district court rejected Fox’s proposed instruction
on circumstantial evidence and instead gave the pattern jury instructions on
circumstantial evidence and direct evidence from the Criminal Jury Instruction Guide.
See 10 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides,
Criminal, CRIMJIG 3.05 (5th ed. 2006). The jury found Fox guilty on both counts, and
the district court entered judgment of conviction on both counts. The court sentenced
Fox to the mandatory sentence of life imprisonment without the possibility of release on
his first-degree premeditated murder conviction. This direct appeal followed.
I.
Fox argues that he did not knowingly or intelligently waive his Fifth Amendment
right to remain silent, and therefore the district court erred in denying the motions to
suppress his December 29 and December 30 statements to police. We review findings of
fact related to an alleged Miranda waiver for clear error. State v. Anderson, 789 N.W.2d
6
227, 233 (Minn. 2010) (citing State v. Burrell, 697 N.W.2d 579, 591 (Minn. 2005)). But
we review legal conclusions de novo. Id.
When a criminal suspect is subjected to custodial interrogation, the suspect must
be informed of his right to remain silent and his right to counsel. Miranda v. Arizona,
384 U.S. 436, 473-74 (1966). A suspect may waive the Fifth Amendment privilege
against self-incrimination and right to counsel, but only if the waiver is knowing,
intelligent, and voluntary. Id. at 444. A waiver may be inferred from the totality of the
circumstances. See Berghuis v. Thompkins, 560 U.S. 370, 384 (2010) (“Where the
prosecution shows that a Miranda warning was given and that it was understood by the
accused, an accused’s uncoerced statement establishes an implied waiver of the right to
remain silent.”); State v. Merrill, 274 N.W.2d 99, 106 (Minn. 1978) (“To determine
whether a defendant’s conduct implies an effective waiver, a court must look at the
circumstances of the particular case.”). But the State has the burden of proving a valid
waiver. Ordinarily, the State satisfies its burden of proving a knowing, voluntary, and
intelligent waiver of Miranda rights if it shows: (1) Miranda warnings were given,
(2) the defendant stated that he or she understood those warnings, and (3) then the
defendant gave a statement. State v. Camacho, 561 N.W.2d 160, 168 (Minn. 1997)
(citing State v. Linder, 268 N.W.2d 734, 735 (Minn. 1978)).
A.
Fox argues that he did not affirmatively waive his Miranda rights with respect to
his December 29 statement, and therefore the district court erred in not suppressing it.
Essentially, Fox makes two arguments. First, Fox argues that he did not waive his rights
7
or agree to speak with the officers. The State counters that Fox did not raise this
argument to the district court, and therefore it is forfeited.
After his arrest, Fox was interviewed by officers. The officers initially stated that
the interview pertained to a BCA case. Before the officers could give the Miranda
warnings, Fox volunteered that the interview was about “my girl’s car.” The officers
interrupted Fox, gave him the Miranda warnings, and Fox affirmatively stated that he
understood his rights. Fox was then asked if he wished to speak to the police officers.
Fox responded, “I mean what [inaudible] you know am I being charged or somthin’.”
The officer replied, “Okay, um the car you were in last night.” Fox then said, “Right, it’s
my girl’s car.” Thereafter, Fox told the officers that Baker was his girlfriend, that he
used Baker’s car the last couple of days, that he had sex with another woman in the car,
and that he ran from police because he had a warrant against him. After the officers told
him that Baker was dead and that they were confident he had something to with it, Fox
stated that he “did nothin’ to that lady” and shortly thereafter invoked his right to an
attorney.
Assuming without deciding that Fox’s Miranda claim relating to the December 29
statement is properly before us, we reject it on the merits. It is true that police failed to
obtain Fox’s express waiver of his Miranda rights. But a waiver may be implied from
the circumstances. Berghuis, 560 U.S. at 384; Merrill, 274 N.W.2d at 106.
Based upon the totality of the circumstances, we conclude that Fox impliedly
waived his Miranda rights. The colloquy between Fox and the officer demonstrates that
Fox was given the Miranda warnings, affirmatively stated that he understood his rights,
8
and proceeded to voluntarily participate in the interview. Fox was aware that he was
going to be questioned on matters other than the Department of Corrections warrant on
which he was arrested. Indeed, Fox introduced the subject of Baker’s car and his
relationship with Baker on his own. Thus, Fox impliedly waived his Miranda rights.
Second, Fox argues that, when he was arrested on an unrelated warrant, the police
did not tell him that they wanted to question him regarding Baker’s death, and therefore
he did not knowingly and intelligently waive his Miranda rights. Fox relies on State v.
Beckman, 354 N.W.2d 432 (Minn. 1984), for this argument.
The district court found that Fox was not totally unaware of why he was being
interviewed and knew the subject of his interview included the circumstances of Baker’s
death. The record indicates that Fox volunteered information related to Baker and then
the officers’ questions focused on the circumstances relating to Baker’s death.
We addressed a factually similar situation in State v. Beckman, where we
considered, among other things, whether the failure to inform the defendant about the
subject matter of the interrogation invalidated a Miranda waiver. Id. at 436. The
defendant was asked to accompany the police to the station for the purpose of receiving a
traffic ticket. Id. at 435. After he waived his Miranda rights, the defendant was
questioned about a burglary and robbery. Id. We concluded that the defendant’s waiver
of his Miranda rights was valid, reasoning that the defendant was “not totally unaware”
of the offenses about which police were going to question him because he was informed
before waiving his rights that officers wanted to question him about matters other than
the traffic ticket. Id. at 437. We cautioned police, however, to make sure that defendants
9
are informed of the crimes about which they will be questioned before they are asked to
waive their Miranda rights. Id.
Subsequently, in Colorado v. Spring, 479 U.S. 564 (1987), the United States
Supreme Court considered whether a defendant, who was questioned about firearms
transactions that led to his arrest, validly waived his Miranda rights with respect to
questioning about his role in a murder. Id. at 566-69. The defendant later confessed to
the murder and was tried and convicted. Id. at 567-69. The Court held that a suspect’s
awareness of all the offenses about which he or she could be questioned in a custodial
interview was not relevant to determining the validity of a decision to waive the Fifth
Amendment privilege against self-incrimination. Id. at 577. The Court observed that the
Constitution does not require that a criminal suspect know and understand every possible
consequence of a waiver of his or her Miranda rights. Id. at 576. Additional information
could affect the wisdom of a waiver, but not its voluntary and knowing nature. Id. at 577.
The Court concluded that the failure to inform the defendant of the subject matter of an
interrogation could not have affected his decision to waive his Fifth Amendment rights.
Id.
We have not previously determined whether our decision in Beckman is good law
in light of the United States Supreme Court’s decision in Spring. It is not necessary for
us to resolve that issue now because the record establishes that Fox was not totally
unaware of the topics upon which he was going to be questioned. When police began the
interview, Fox started discussing Baker’s car before a single question was asked of him.
The officer interrupted Fox to give him the Miranda warnings, after which the officers
10
returned the conversation to the subject of Baker’s car, which segued into a discussion of
Fox’s activities on the night of December 27; his use of Baker’s debit card; his failure to
contact Baker for a day and a half; and ultimately, Baker’s death. These facts confirm, as
the district court determined, that Fox was “largely aware” of why he was being
interviewed.1 Because Fox was not totally unaware of the subject of the interrogation,
Fox’s waiver of his Miranda rights was valid under the more stringent standard from
Beckman.
B.
Fox also contends that the district court erred in admitting his December 30
statement. Specifically, Fox argues that he invoked his Fifth Amendment right to counsel
at the end of the December 29 interview, did not subsequently waive it, and therefore the
district court erred in failing to suppress the December 30 statement. When a defendant
is given Miranda warnings and invokes the right to counsel, any further responses to
questioning may only be admitted upon the court finding that the defendant initiated
1
The district court did not state or indicate what burden of proof it applied to
determine that Fox’s waiver of his Miranda rights was “knowing, intelligent, and
voluntary.” Although it is not clear whether the district court applied the appropriate
burden of proof, our precedent has made clear that even if the district court applied an
incorrect standard, such an error is not reversible if the facts support the same result
under the correct standard. See State v. Holliday, 745 N.W.2d 556, 563 n.3 (Minn. 2008)
(concluding appellant’s first-degree murder and attempted first-degree murder
convictions were not reversible based on the district court’s incorrect statement of the
standard for premeditation because the evidence supported the court’s finding of
premeditation under the correct standard); Kornberg v. Kornberg, 542 N.W.2d 379, 387
n.3 (Minn. 1996) (concluding the district court’s application of the incorrect standard of
proof regarding fraud was not reversible error because no showing of fraud could be
sustained under the correct standard of proof).
11
further discussion with the police and knowingly and intelligently waived the right he or
she had previously invoked. Smith v. Illinois, 469 U.S. 91, 94-95 (1984) (per curiam)
(citing Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)).
It is undisputed that Fox invoked his right to counsel at the end of the December
29 interview and that police stopped questioning him. It is also undisputed that Fox then
reinitiated contact with police. Fox does dispute, however, that he knowingly and
intelligently waived his Miranda rights. Fox makes three arguments to support his
contention that there was not a waiver. First, Fox argues that he was represented by a
public defender, and therefore the interview should not have proceeded without a lawyer.
Second, Fox argues that the police failed to inform him that public defenders had arrived
at the jail and had requested to meet with him, and jail staff did not allow the meeting to
occur. Without that information, Fox contends his waiver was invalid. Third, Fox argues
that the public defender’s office misinformed him that he was not entitled to be
represented by the public defender until he was formally charged and that this
misinformation invalidated the subsequent waiver of his right to counsel. We will
discuss each argument separately.
1.
Fox first argues that he was represented by a public defender at the time of the
December 30 interview, and implies that the interview should not have proceeded
without his lawyer present. We have relied upon the Sixth Amendment to hold that “in-
custody interrogation of a formally accused person who is represented by counsel should
not proceed prior to notification of counsel or the presence of counsel,” and that
12
statements obtained in violation of this rule are “subject to exclusion at trial.” State v.
Lefthand, 488 N.W.2d 799, 801-02 (Minn. 1992). We expressed our strong disapproval
of in-custody interrogations if the defendant is represented by counsel and counsel is not
provided with an opportunity to be present at the questioning. Id. at 801. Subsequently,
in State v. Parker, we concluded that Lefthand, which relied on the Sixth Amendment
right to counsel, was not applicable when the defendant had not been “formally accused”
at the time of the disputed interview because he had not been arraigned. 585 N.W.2d
398, 405-06 (Minn. 1998).
The district court concluded that Lefthand was not applicable because at the time
of the interview, Fox had not been formally charged and a public defender had not been
appointed. We agree that our decision in Lefthand is not applicable in this case because
Fox had not yet been formally charged, and therefore the statement is not subject to
automatic exclusion—particularly here where there is no evidence that police knew that
Fox was represented by a public defender, and therefore there is no evidence of police
misconduct or manipulation. See State v. Ford, 539 N.W.2d 214, 224-25 (Minn. 1995)
(explaining that our decision in Lefthand did not create an automatic exclusionary rule;
instead whether the statement must be suppressed depends on “the egregiousness of the
government’s action in total”).
2.
Second, Fox argues that the failure of the interviewing officers to inform him that
public defenders had been at the jail trying to speak with him deprived him of
information necessary to a knowing and intelligent decision to waive his Miranda rights.
13
In response, the State contends that Fox’s argument is foreclosed by the United
States Supreme Court’s decision in Moran v. Burbine, 475 U.S. 412 (1986). In Moran,
police obtained a Miranda waiver from an in-custody suspect without informing the
suspect that a public defender, contacted by the suspect’s sister without his knowledge,
had telephoned the station stating that she would act as counsel for the suspect should he
be questioned. Id. at 416-17. The United States Supreme Court reversed the United
States Court of Appeals for the First Circuit, holding that the Fifth Amendment did not
require exclusion of the defendant’s statements. Id. at 428. The Court reasoned that the
police failure to inform the defendant of an attorney’s phone call did not deprive him of
information essential to his ability to intelligently waive his Fifth Amendment rights to
remain silent and to the presence of counsel. Id. at 422. “Events occurring outside of the
presence of the suspect and entirely unknown to him surely can have no bearing on the
capacity to comprehend and knowingly relinquish a constitutional right.” Id. The level
of police culpability, whether intentional or inadvertent, in failing to inform the defendant
of the telephone call had no bearing on the validity of the defendant’s waiver. Id. at 423.
Fox argues that Moran is distinguishable because the defendant in Moran did not
invoke his right to counsel, and the defendant in that case was unaware of his sister’s
efforts to contact a public defender on his behalf. Fox also argues the defendant in
Moran understood all of his rights and the potential consequences of waiving those
rights.
But Moran is not distinguishable in any meaningful way. It is true that in Moran
the Court stated, “the dissent never comes to grips with the crucial distinguishing feature
14
of this case—that [the defendant] at no point requested the presence of counsel.” 475
U.S. at 423 n.1. But this statement was made in response to the dissent’s claim that the
analysis of the majority was inconsistent with Edwards v. Arizona, 451 U.S. 477 (1981),
in which the court held that when a suspect has requested counsel, interrogation must
cease regardless of any question of waiver unless the suspect himself initiates the
conversation. Id. at 484-85. Thus, the defendant’s failure to request counsel was crucial
to the Court’s conclusion that the Edwards rule did not apply in Moran, not to the Court’s
conclusion that police officers’ failure to inform the defendant of an attorney’s phone call
did not deprive him of information essential to his ability to waive his Fifth Amendment
right to the presence of counsel. More importantly, the Edwards rule is not applicable to
Fox for a different reason: Fox reinitiated the conversation with police. See Edwards,
451 U.S. at 485-86 & n.9.
We conclude that the failure of the police to inform Fox that public defenders
came to the jail to meet with him did not deprive him of information essential to his
ability to waive his Miranda rights and therefore, pursuant to Moran, did not invalidate
his waiver. The fact that the public defenders came to the jail was unknown to Fox and
had no bearing on his capacity to comprehend and knowingly waive his right to counsel.
Moreover, there is no evidence of police misconduct or impropriety. It is undisputed that
the interviewing officers were not aware of the efforts of public defenders to talk to Fox.
Further, there is no evidence that Washington County jail staff deliberately failed to
forward that information to the interviewing officers.
15
Fox next argues that even if the waiver of his Miranda rights was knowing and
intelligent under the Fifth Amendment to the United States Constitution, it was not
knowing or intelligent under Minn. Const. art. I, § 7 (“No person shall be held to answer
for a criminal offense without due process of law, . . . nor be compelled in any criminal
case to be a witness against himself, nor be deprived of life, liberty or property without
due process of law.”). Fox proposes that we depart from the U.S. Supreme Court’s
interpretation of the Fifth Amendment in Moran and adopt a more protective rule that
holds a suspect’s Miranda waiver is not knowing and intelligent when officers withhold
information from the suspect about an attorney’s attempt to contact him or her to render
assistance.
The Minnesota Constitution may, under certain circumstances, provide more
protection for individual rights than the United States Constitution. Kahn v. Griffin, 701
N.W.2d 815, 824 (Minn. 2005). We adhere, however, to “the general principle that
favors uniformity with the federal constitution” and will not depart from federal
precedent unless we have a “clear and strong conviction” that there is a “principled basis”
for us to interpret the Minnesota Constitution as providing greater protection of
individual rights. Id. at 828. When the text of our state constitution is identical or
substantially similar to the federal constitution, as it is here, we look to the Minnesota
Constitution for greater protection when: (1) the United States Supreme Court has made
a “sharp or radical departure from its previous decisions” and “we discern no persuasive
reason to follow such a departure;” (2) the Court has retrenched on Bill of Rights issues;
16
or (3) “federal precedent does not adequately protect our citizens’ basic rights and
liberties.” Id.
The question of whether there is a principled basis to depart from Moran and
adopt a more protective rule under Minn. Const. art. I, § 7, first requires clarification of
what type of police conduct is encompassed by Moran’s rule. Moran makes clear that its
holding encompasses both inadvertent and intentional failures by police to inform a
suspect about an attorney’s efforts to contact the suspect. See 475 U.S. at 423 (“But
whether intentional or inadvertent, the state of mind of the police is irrelevant to the
question of the intelligence and voluntariness of respondent’s election to abandon his
rights.”). In this case, there is no evidence that the interviewing officers deliberately
withheld information from Fox, or that jail staff deliberately failed to tell either the
interviewing officers or Fox that public defenders tried to contact Fox. Moreover, we see
no basis for imputing the knowledge of jail staff to the interviewing officers in this case.2
Therefore the limited question that we need to address in this case is whether there is a
principled basis to depart from Moran with respect to inadvertent failures by police to
inform a suspect of an attorney’s efforts to contact him or her.
2
Although we do impute knowledge amongst police officers who are from the same
force or are involved in the same investigation in certain contexts, see, e.g., State v. Eling,
355 N.W.2d 286, 290 (Minn. 1984) (permitting a probable cause finding to be based on
the “collective knowledge” of the police department), Fox’s argument would require us
to impute knowledge among personnel from organizationally distinct entities—
specifically the knowledge of jail staff from Ramsey County with investigators from the
Oakdale Police Department and the BCA. There is no basis for us to do so in this case.
17
We conclude that there is no principled basis to depart from Moran and provide
greater protection under Minn. Const. art. I, § 7, in this limited context. The U.S.
Supreme Court’s decision in Moran, with respect to the inadvertent failure of police to
inform a suspect about an attorney’s efforts to contact him, does not mark a sharp or
radical departure from the Court’s Fifth Amendment waiver precedent and did not
retrench on a Bill of Rights issue. Moreover, the rule articulated in Moran does not, with
respect to the inadvertent failure of police to inform, fail to adequately protect a basic
right or liberty of Minnesotans. Because the facts of this case do not present the question
of whether the Minnesota Constitution provides greater protection in the context of
deliberate police withholding of information than the Fifth Amendment, as interpreted by
the U.S. Supreme Court in Moran, we do not reach that issue.
3.
Third, Fox argues that the public defender’s office misinformed him that he was
not entitled to be represented by a public defender until he was formally charged, and that
this misinformation invalidated his waiver.3 The United States Supreme Court and our
court have considered allegations of misinformation and police impropriety in several
relevant cases. See Duckworth v. Eagan, 492 U.S. 195 (1989); State v. Medrano, 751
N.W.2d 102 (Minn. 2008); State v. Bradford, 618 N.W.2d 782 (Minn. 2000).
3
The State responds that Fox failed to raise this argument below. “We do not
ordinarily decide ‘issues that are raised for the first time on appeal, even constitutional
questions of criminal procedure.’ ” State v. Anderson, 733 N.W.2d 128, 134 (Minn.
2007) (quoting State v. Allen, 706 N.W.2d 40, 43 (Minn. 2005)). The State is correct that
Fox did not raise this precise issue below. But the issue is germane to other arguments he
has raised, and there is no prejudice to the State in addressing it now.
18
In Duckworth, the defendant, when first questioned by Indiana police in
connection with a stabbing, made an exculpatory statement after being read Miranda
warnings. 492 U.S. at 198. The warnings included a statement that, if the defendant
could not afford a lawyer, one would be appointed to him “if and when you go to court.”
Id. Twenty-nine hours later, the defendant was interviewed again, signed a different
waiver, admitted to the stabbing, and led officers to the site of the stabbing, where the
officers discovered relevant physical evidence. Id. at 198-99. The defendant challenged
the admissibility of his confession at the second interview, arguing that the first Miranda
warnings were constitutionally defective because the phrase “if and when you go to
court” implied that he was not entitled to a lawyer during interrogation unless the
government filed charges and he went to court—misinformation that the second Miranda
warnings failed to correct. Id. at 199-200. The United States Supreme Court held that
the first warnings given to the defendant, in their totality, satisfied Miranda. The Court
reasoned that the language “if and when you go to court” accurately described the
procedure for appointment of counsel under Indiana law. Id. at 204. Second, Miranda
does not require that attorneys be producible on call, but only requires that the defendant
have a right to an attorney before and during questioning, and that an attorney would be
appointed for him if he could not afford one. Id. The Court cautioned that a suspect’s
right to counsel cannot be linked to some future event after interrogation, but, viewed in
their totality, the warnings in Duckworth did not suffer from such a defect. Id. at 204-05.
In Medrano, we held that a Miranda warning was not constitutionally flawed even
though the suspect was informed that he would not “be able to talk to a lawyer until
19
tomorrow.” 751 N.W.2d at 110. We noted that the police officer also informed the
suspect that if he asked for a lawyer the interview would stop and the officers would not
talk to him until he could consult a lawyer. Id. In light of these additional statements, we
reasoned that the officer accurately informed the suspect of his Miranda rights by
indicating he had the “right to an attorney before any police questioning,” in accordance
with Duckworth.4 Id.
In Bradford, an in-custody suspect told interviewing officers, “I wanna talk to you
but, I wanna have somebody present,” and then asked when counsel would be appointed
for him. 618 N.W.2d at 796. When he was told an attorney would be provided within 36
hours of his arrest if he was formally charged, the suspect stated, “Ok, well, I’m gonna
tell you what happened,” answered “yes” when asked if he wanted to tell his side of the
story “without an attorney here,” and then proceeded to give a statement. Id. We held
4
Fox points out that Minnesota law permits a criminal suspect to, under certain
circumstances, obtain appointed counsel prior to his or her first appearance. See Minn.
Stat. § 611.18 (2014) (“Prior to any court appearance, a public defender may represent a
person accused of violating the law, who appears to be financially unable to obtain
counsel . . . .”). But whether Fox could lawfully have been represented by a public
defender before formal charges were brought does not directly bear on the question of
whether Fox understood his Fifth Amendment right to counsel. See Medrano, 751
N.W.2d at 111 (explaining that the validity of the Miranda warning does not turn on the
accuracy of the warning under applicable state law; rather, the suspect’s right to counsel
may not be linked to a future time after the interrogation is completed). Even if Fox was
misinformed about when he would be able to secure representation by the public
defender, the record establishes that Fox clearly understood that he did not need to
answer questions until he had counsel, and the police officers who questioned Fox made
sure that he was choosing to talk without an attorney present.
20
that the district court “properly concluded that Bradford invoked his right to counsel, but
then waived that right after reinitiating a conversation with the police.” Id.
We conclude that a defendant’s understanding that he was not entitled to the
assistance of appointed counsel until he was formally charged did not invalidate the
waiver of his previously invoked Fifth Amendment right to counsel. The Miranda
warnings given to Fox at the beginning of the second interview were valid and satisfied
Miranda. Specifically, Fox was advised that he had the right to have a “lawyer present
with [him] while [he was] being questioned,” that if he could not afford a lawyer “one
will be appointed ta’ represent [him] before any questioning if [he] wish[ed],” (emphasis
added), and that Fox could “decide at any time” to “[n]ot answer any questions or make
any statements.” Fox waived his Miranda rights and then reinitiated the “conversation
with the police,” like in Bradford. After a little more than a page of discussion in the
transcript of the interview, Fox told police that he had spoken to a public defender earlier
in the day and that the public defender informed Fox that the only way he could receive
the assistance of a public defender was if he was charged with a crime. The officers
responded,
[Officer]: And just [to] be clear, you decided that you didn’t wanna
have a lawyer present when you’re doing this so, right?
[Fox]: At [this] time, yes sir.
[Officer]: Yes, okay.
[Fox]: Yeah.
Thereafter, the officers clarified that they did not say anything about Fox needing to be
charged to have a lawyer and that they had informed him of his rights and had explained
them. A few lines later the officers again confirmed that Fox was “not asking for a
21
lawyer right now?” and Fox responded, “No sir I’m not.” Like the defendant in
Bradford, Fox then affirmed that he wanted to tell his side of the story, even without an
attorney present, stating that he would “rather go and get this off my chest and deal
[with] it now . . . and get it over with.” There is no evidence in the transcript that the
police officers improperly suggested that Fox had to speak with them in order to receive
the assistance of appointed counsel. Instead, the record indicates that, like the defendant
in Bradford, Fox received valid Miranda warnings, he understood his rights, and he
voluntarily waived those rights.
In sum, the district court’s conclusion that Fox’s waiver of his Fifth Amendment
right to counsel was voluntary, knowing, and intelligent is supported by the record. The
public defender’s efforts to speak with Fox before the interview occurred outside of
Fox’s presence and were entirely unknown to him. Consequently, it has no bearing on
his capacity to understand and waive his constitutional rights. The Constitution does not
require police to supply a suspect with all information relevant to a decision. All the
Constitution requires is that the waiver be uncoerced, that the suspect understand that he
or she has the right to remain silent and the right to counsel, and that the suspect
understand that any statements made could be used against him or her. There is no
evidence here that the police officers engaged in any misconduct or impropriety. When
the officers became aware that Fox had spoken to the public defender’s office, and that
Fox was potentially confused regarding his right to counsel, the officers clarified that
they did not advise him that he could not have appointed counsel until formally charged,
22
asked him twice whether he wanted counsel, and confirmed that he did not. On these
facts, we hold that Fox validly waived his Miranda rights.
II.
Fox argues that the district court erred by declining to give his requested jury
instruction on circumstantial evidence. Specifically, Fox requested that the district court
give the following jury instruction: “In order to return a verdict of guilty on the basis of
circumstantial evidence, all circumstances proved must be consistent with that conclusion
and inconsistent with any other rational conclusion.” The district court rejected Fox’s
proposed jury instruction on the basis that it was confusing and not required by existing
law. The court also expressed concern that such an instruction would effectively require
juries to complete special verdict forms identifying how direct versus circumstantial
evidence contributed to the verdict. Instead, the court gave the pattern jury instructions
on circumstantial evidence and direct evidence:
[I]t is necessary for the State to prove all of the material allegations [in the
Indictment] beyond a reasonable doubt in order to establish the
[D]efendant’s guilt. . . .
A fact may be proven by either direct or circumstantial evidence, or
by both. The law does not prefer one form of evidence over the other.
. . . A fact is proven by circumstantial evidence when its existence
can be reasonably inferred from other facts proven in the case.
10 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Criminal,
CRIMJIG 3.05 (5th ed. 2006).
We review a district court’s refusal to give a requested jury instruction for abuse
of discretion. State v. Scruggs, 822 N.W.2d 631, 640 (Minn. 2012) (citing State v.
23
Palubicki, 700 N.W.2d 476, 487 (Minn. 2005)). A district court has “considerable
latitude” in selecting jury instructions and in selecting language for jury instructions.
State v. Anderson, 789 N.W.2d 227, 239 (Minn. 2010). When the instructions read as a
whole correctly state the law in language understandable to the jury, there is no reversible
error. Id. But the district court errs when it gives instructions that confuse, mislead, or
materially misstate the law. Scruggs, 822 N.W.2d at 642.
In State v. Turnipseed, 297 N.W.2d 308, 312 (Minn. 1980), we stated that a
district court’s jury instruction in a criminal case involving circumstantial evidence does
not need to state that the circumstances proved must be “consistent with [the] conclusion
[of guilt] and inconsistent with any other rational conclusion.” We noted that such
language is not a “mandatory” instruction in circumstantial evidence cases. Id.
Moreover, we explained that tests for sufficiency of the evidence are conceptually
distinct from jury instructions and “not every sufficiency of the evidence test should be
read to the jury.” Id. We have followed Turnipseed in two relevant cases. See, e.g.,
State v. Stein, 776 N.W.2d 709, 723 (Minn. 2010) (“Although we eventually abandoned
the special jury instruction, State v. Turnipseed, 297 N.W.2d 308, 313 (Minn. 1980), we
retained the traditional rational hypothesis review standard.”) (Meyer, J., concurring);
State v. Jones, 516 N.W.2d 545, 548 n.4 (Minn. 1994) (holding that Turnipseed
controlled and that the district court did not err in failing to give a rational hypothesis jury
instruction regarding circumstantial evidence).
Recently we discussed the circumstantial evidence standard of review for
sufficiency challenges in State v. Andersen, 784 N.W.2d 320 (Minn. 2010), in which the
24
concurrence urged the court to adopt a rule requiring district courts to provide a rational-
hypothesis instruction to the jury in circumstantial evidence cases. Id. at 337-40 (Meyer,
J., concurring); see also State v. Tscheu, 758 N.W.2d 849, 871 (Minn. 2008) (Meyer, J.,
concurring). We did not adopt the rule advocated by the concurrence in Andersen, nor
have we overruled Turnipseed. Consequently, the district court did not materially
misstate existing law by giving the pattern jury instructions on circumstantial evidence
and direct evidence and not a “rational hypothesis” instruction, like that proposed by Fox.
We therefore hold that the district court did not abuse its discretion when it declined to
give Fox’s proposed “rational hypothesis” jury instruction on circumstantial evidence.
III.
Fox argues that the State did not present sufficient evidence to support his
convictions of (1) first-degree felony murder, or (2) first-degree premeditated murder.
For the reasons that follow, we conclude the State presented sufficient evidence to
support Fox’s convictions.
A.
Fox argues that the evidence is not sufficient to support the jury verdict that Fox
formed the intent to commit the underlying felony of aggravated robbery either before or
during Baker’s murder. Specifically, Fox argues the evidence does not exclude the
rational hypothesis that Fox’s taking of the debit card was an impulsive afterthought
following the killing.
When evaluating whether the evidence is sufficient, we carefully examine the
record to determine whether the facts and the legitimate inferences drawn from them
25
would permit the jury to reasonably conclude that the defendant was guilty beyond a
reasonable doubt of the offense of which he was convicted. State v. Al-Naseer, 788
N.W.2d 469, 473 (Minn. 2010); Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999). We
view the evidence presented in the light most favorable to the verdict, and assume that the
fact-finder disbelieved any evidence that conflicted with the verdict. State v. Palmer, 803
N.W.2d 727, 733 (Minn. 2011); State v. Leake, 699 N.W.2d 312, 319 (Minn. 2005). The
verdict will not be overturned if the fact-finder, upon application of the presumption of
innocence and the State’s burden of proving an offense beyond a reasonable doubt, could
reasonably have found the defendant guilty of the charged offense. Bernhardt v. State,
684 N.W.2d 465, 476-77 (Minn. 2004).
When a conviction is based on circumstantial evidence, we use a two-step test to
evaluate the sufficiency of the evidence. State v. Andersen, 784 N.W.2d 320, 329-30
(Minn. 2010). First, we identify the circumstances proved and, in doing so, we defer to
the fact-finder’s acceptance of the proof of these circumstances and the fact-finder’s
rejection of evidence in the record that conflicts with the circumstances proved by the
State. Id. at 329. Second, we examine independently the reasonable inferences that
might be drawn from the circumstances proved. Id. We give no deference to the fact-
finder’s choice between reasonable inferences. Id. at 329-30. To sustain a conviction
based on circumstantial evidence, the reasonable inferences that can be drawn from the
circumstances proved as a whole must be consistent with the hypothesis that the accused
is guilty and inconsistent with any rational hypothesis except that of guilt. Id. at 332
(citing State v. Curtis, 295 N.W.2d 253, 258 (Minn. 1980)). We will not overturn a
26
conviction based on circumstantial evidence on the basis of mere conjecture. State v.
Lahue, 585 N.W.2d 785, 789 (Minn. 1998).
First-degree felony murder under Minn. Stat. § 609.185(a)(3), requires proof that
the defendant “cause[d] the death of a human being with intent to effect the death of the
person or another, while committing or attempting to commit” one of several enumerated
felonies, including aggravated robbery. “[T]he act that constitutes the underlying felony
may occur before, during, or after the killing,” State v. Darris, 648 N.W.2d 232, 239
(Minn. 2002) (citing State v. Harris, 589 N.W.2d 782, 792 (Minn. 1999)), but “[a]
conviction for felony murder will be upheld only when the killing and the felony are part
of ‘one continuous transaction,’ ” id. at 237 (quoting Kochevar v. State, 281 N.W.2d 680,
686 (Minn. 1979)). For there to be one continuous transaction, there must be evidence
that the defendant formed the intent to commit the underlying felony before or during the
act resulting in death. Id. at 239.
In this case, the circumstances proved are that Fox depended on Baker for money,
that Fox and Baker had experienced relationship problems prior to the murder, and that
Baker gave Fox an ultimatum to move out of the apartment. Fox admitted that he did not
have the PIN to Baker’s debit card prior to the night Baker was killed. Several of Baker’s
injuries were not life threatening. Fox took Baker’s debit card, leaving the wallet and the
rest of her cards in her apartment. Using the PIN to Baker’s debit card, Fox used the
debit card repeatedly over the course of the two days following Baker’s death.
From these circumstances, the only reasonable inference is that Fox formed the
intent to rob Baker before or during the killing and that during the killing he inflicted
27
non-life-threatening injuries that forced Baker to disclose the PIN to her debit card.
Unlike in Darris, 648 N.W.2d at 237-40, it is not rational to infer that Fox took the debit
card as an impulsive afterthought because once Baker was dead, there was no way for her
to disclose the PIN to her debit card. We therefore conclude that the State presented
sufficient evidence to support Fox’s conviction of first-degree felony murder under Minn.
Stat. § 609.185(a)(3).
B.
Fox also argues that there was not sufficient evidence to prove that the killing was
premeditated. A person who “causes the death of a human being with premeditation and
with intent to effect the death of the person” is guilty of first-degree murder. Minn. Stat.
§ 609.185(a)(1). Premeditation means “to consider, plan or prepare for, or determine to
commit, the act referred to prior to its commission.” Minn. Stat. § 609.18 (2014).
Premeditation is “generally proven through circumstantial evidence” and “often
inferred from the totality of circumstances surrounding the killing.” State v. Hughes, 749
N.W.2d 307, 312 (Minn. 2008) (citation omitted) (internal quotation marks omitted). We
consider three categories of evidence relevant to an inference of premeditation: planning
activity, motive, and the nature of the killing. State v. Moore, 846 N.W.2d 83, 89 (Minn.
2014).
We first turn to planning activity. Planning activity relates to “facts about how
and what the defendant did prior to the actual killing which show he was engaged in
activity directed toward the killing.” Hughes, 749 N.W.2d at 313 (citation omitted)
(internal quotation marks omitted). We have found that planning activity includes
28
procuring the murder weapon from one part of the house and bringing the weapon to the
victim’s location. See, e.g., Moore, 846 N.W.2d at 89; State v. Merrill, 274 N.W.2d 99,
103-04 (Minn. 1978). We have also established that a defendant’s actions both before
and after the killing are relevant to planning activity, including a defendant’s “cool, calm
demeanor” in attempting to avoid detection and destroy evidence. See, e.g., State v.
Hurd, 819 N.W.2d 591, 600 (Minn. 2012); see also State v. Leake, 699 N.W.2d 312, 321
(Minn. 2005).
The circumstantial evidence of premeditation based on planning activity is
significant. A few hours before the killing, Fox retrieved a duffel bag containing clothes
from T.G.’s house. The police found a drawer containing knives slightly ajar in Baker’s
kitchen. Baker’s body was found stabbed 48 times in her bedroom. Blood spatter from
the stabbing was confined to the bedroom. Baker’s wounds are consistent with wounds
inflicted by a kitchen knife. Although the specific murder weapon was not recovered,
one can reasonably infer that the knife Fox used to kill Baker came from her kitchen, not
somewhere else. The evidence that Fox secured a change of clothes and then used a
knife that is typically found in a kitchen to stab Baker to death in her bedroom was
sufficient to establish planning activity. See Moore, 846 N.W.2d at 89.
Additionally, Fox attempted to destroy evidence by pouring cleaning products
over Baker’s body and her bedroom. Fox took Baker’s debit card and used it repeatedly
after the killing, at times involving other people to make withdrawals or purchases with
the card. Shortly before he was arrested, Fox purchased a bus ticket to Milwaukee under
an assumed name, “Tim Fox.” Collectively, Fox’s behavior before and after the murder
29
shows that he had the presence of mind to take multiple actions aimed at destroying
evidence and evading detection. In recent cases, we have held that similar efforts on the
part of the defendant supported the jury’s finding of premeditation. See, e.g., Hurd, 819
N.W.2d at 600; Leake, 699 N.W.2d at 321. When viewed as a whole, the circumstances
proved relating to planning activity support a reasonable inference of premeditation and
are inconsistent with any rational hypothesis other than that the killing was premeditated.
We next address the nature of the killing. While a “series of shots or blows” does
not itself support a finding of premeditation, numerous blows can indicate premeditation
when supported by additional evidence, such as evidence of a “long and severe attack.”
State v. Cooper, 561 N.W.2d 175, 180 (Minn. 1997) (citing State v. Richardson, 393
N.W.2d 657, 664 (Minn. 1986)). Moreover, evidence that a defendant struck additional
blows after the victim was already incapacitated supports a finding of premeditation. See
State v. Palmer, 803 N.W.2d 727, 736-37 (Minn. 2011) (reasoning evidence showing that
the defendant “stood over [the victim] and finished him off,” including the downward
trajectories of some of the bullet paths, supported the jury’s finding of premeditation);
State v. Clark, 739 N.W.2d 412, 423 (Minn. 2007) (reasoning evidence showing that the
fatal second wound was inflicted while victim was lying on the floor supported the jury’s
finding of premeditation).
The circumstantial evidence of premeditation based on the nature of the killing is
significant. Baker was stabbed 48 times, with several of these wounds to “vital areas” of
her body, including her neck, chest, and back. Baker was stabbed at least once while
crouched or prone on the ground, indicated by a deep back wound inflicted at a
30
downward angle and blood spatter less than 2 feet above the floor, in an upward
direction. The medical examiner testified that the varied depth and placement of the
wounds was likely due to the fact that Baker was moving and trying to protect herself
during the attack. Baker also had blunt force injuries to her eye and back of her head, as
well as defensive wounds to her hand and arm. A downstairs neighbor heard 10 minutes
of screaming coming from Baker’s apartment on the night of the killing. Injuries to the
inside of Baker’s mouth are consistent with Baker’s mouth being covered, supporting the
reasonable inference that the attack lasted even longer than 10 minutes because at some
point Baker was not able to scream.
Fox contends that the “varied and haphazard” location of Baker’s wounds, the lack
of evidence that the attack was “aimed at or struck vital bodily areas,” and the lack of
eyewitness or medical evidence that the attack was prolonged make it impossible to
exclude a rational hypothesis that Fox’s killing of Baker was rash and impulsive. Based
upon the circumstances proved, we conclude the only reasonable inference is that Baker
died after a severe and prolonged attack. The medical examiner testified that the varied
depth and placement of the wounds was likely due to the fact that Baker was moving and
trying to protect herself during the attack. The 10 minutes of screaming from Baker’s
apartment, the evidence that Baker’s mouth was covered, the 48 stab wounds, and the
evidence that Baker was stabbed after she was already helpless on the floor, support the
conclusion that Fox had sufficient time to deliberate before he decided to kill Baker.
Lastly, we turn to motive. Fox argues that the State did not provide evidence of
motive. Motive “may be inferred from the defendant’s prior relationship and conduct
31
with the victim,” including “ ‘plans or desires of the defendant which would be facilitated
by the death of the victim, and prior conduct of the victim known to have angered the
defendant.’ ” Hughes, 749 N.W.2d at 314 (quoting Moore, 481 N.W.2d at 361).
Although proof of motive is not necessary to find premeditation, State v. Griese, 565
N.W.2d 419, 429 (Minn. 1997), evidence that Fox had a motive to kill Baker may be
used to support a finding of premeditation. The circumstances proved are that Baker
gave Fox money and a place to stay and the relationship between Baker and Fox had
deteriorated to the point that Baker gave Fox an ultimatum to leave the apartment. The
jury could reasonably infer that Fox’s motive for killing Baker was to prevent her from
cutting him off from her money. Notably, after Baker was killed, Fox used Baker’s debit
card to make purchases and withdraw money from her account. Fox counters that his
dependence on Baker for money, a place to sleep, and use of her car, are consistent with a
rational hypothesis that Fox had no motive to kill Baker. But this hypothesis ignores
evidence that Baker was no longer going to take care of him.
In sum, the evidence of Fox’s planning activity, the nature of the killing, and
motive all support the jury’s finding of premeditation. We therefore hold that the State
presented sufficient evidence to support Fox’s first-degree premeditated murder
conviction.
32
IV.
We have also reviewed the claims in Fox’s pro se supplemental brief relating to
his conviction and sentence.5 None of these claims has merit. Additionally, Fox raises
claims relating to the conditions of his confinement. These claims are not addressed here
because they are more appropriately raised in a petition for habeas corpus relief or in a
civil action under 42 U.S.C. § 1983 (2012). See Kelsey v. State, 283 N.W.2d 892, 895
(Minn. 1979) (stating that habeas corpus may be used to challenge prison conditions as
cruel and unusual punishment); see also In re J.A.G., 446 N.E.2d 868, 870 (Ill. Ct. App.
1983) (holding that delinquent minor could not challenge the conditions of his
confinement on direct appeal from his commitment because the record would not be
sufficiently developed on this issue to permit review).
Affirmed.
5
In his pro se supplemental brief, Fox argues that his statements to police were
unconstitutionally obtained; that the State committed multiple instances of prosecutorial
misconduct; that his sentence of life in prison without the possibility of release is in error;
that the district court failed to instruct the jury as to a lesser-included offense; that the
date of the offense on the indictment is incorrect; that the indictment was not supported
by probable cause; that prosecutorial misconduct unduly tainted the grand jury
proceedings; and that he received ineffective assistance of trial counsel.
33