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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

STATE OF MINNESOTA IN SUPREME COURT A06-1765

Ramsey County Anderson, Paul H., J. Dissenting, Hanson, Page, and Meyer, J.J. Dissenting, Page, J.

State of Minnesota, Respondent, vs.
Filed: September 13, 2007

Office of Appellate Courts Courtney Bernard Clark, Appellant.

SYLLABUS District court did not err when it admitted statements the defendant made to the police during three interviews when (1) the defendant's heroin withdrawal symptoms did not prevent him from voluntarily waiving his right to silence; (2) the conduct of the interrogating officers did not deprive the defendant of his ability to make an unconstrained and wholly autonomous decision to speak as he did; and (3) the defendant waived his Sixth Amendment right to counsel during two post-arraignment interviews. District court did not err when it admitted statements the defendant made to the police during two postarraignment interviews because although the prosecutor violated Minn. R. Prof. Conduct 4.2 by permitting the police to interview the defendant without securing the express consent of the defendant's lawyer, the state's conduct was not so egregious as to warrant suppression of the resulting statements under the facts of this case. District court abused its discretion in admitting for substantive purposes the defendant's prior conviction, but a new trial is not warranted because the defendant did not establish that he was prejudiced by the admission

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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

of the prior conviction. Affirmed. Heard, considered, and decided by the court en banc. OPINION ANDERSON, Paul H., Justice. Courtney Bernard Clark was convicted in Ramsey County for murdering Rodney Foster and attempting to murder Foster's girlfriend, B.B., while committing or attempting to commit aggravated robbery, kidnapping, and criminal sexual conduct. At Clark's trial, the state introduced over Clark's objection three recorded

interviews between Clark and the police. In the first and second interviews, Clark denied involvement in the charged offenses. In the third interview, Clark admitted tying up Foster and B.B. and robbing Foster, and he stated that Foster died "by accident." During all three interviews, Clark denied having sexual relations with B.B. on the date in question. Clark's trial testimony was largely consistent with his statements during the third interview and directly opposed to the testimony of B.B., the state's primary witness. On appeal, Clark argues that the district court erred on several grounds when it admitted the recorded interviews and when it admitted, for substantive purposes, Clark's prior conviction for criminal sexual conduct. We affirm. Appellant Courtney Bernard Clark was indicted in Ramsey County for the murder of Rodney Foster and attempted murder of Foster's girlfriend, B.B. Clark pleaded not guilty to all eight counts of the indictment. Clark was subsequently tried before a Ramsey County jury, and B.B. was the state's primary witness. B.B.'s Testimony B.B. testified that she had only known Clark for a few days as of the date of Foster's murder--Saturday, July 16, 2005. Several days before that Saturday, Foster learned that Clark did not have a home and invited Clark to stay at Foster's apartment. [2] While spending time at Foster's apartment, Clark apparently observed [1]

Foster's drug dealer, "Taboo," packaging heroin for sale and selling heroin to Foster. Clark also spent time getting high with Foster and B.B. on drugs that Foster gave him. B.B. and Foster were alone in the apartment and watching a movie in the living room early on Saturday when Clark, Foster's roommate, and the roommate's friend D.T. arrived at approximately 3 a.m. The roommate and D.T. left soon thereafter. Clark eventually asked Foster for some heroin. When Foster told Clark he did not

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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

have any, Clark became angry. At Foster's request, Clark then took a seat on the couch and continued to converse with Foster. B.B. testified that she fell asleep while Foster and Clark were talking. B.B. awoke to see Clark standing over her with a gun, telling her to get on her stomach and put her hands behind her back. Clark then ordered Foster, who was lying on his left side, to get on his stomach. Clark bound B.B.'s wrists and feet, and at some point placed a sock in her mouth. B.B. was unable to see Foster but she deduced, based on comments Foster made to Clark, that Clark had also bound Foster's wrists. Clark then asked where the drugs and money were located. Foster told Clark he would find the items in Foster's bedroom. Clark went to Foster's bedroom and returned with drugs and money. Sometime thereafter, Clark carried B.B. from the living room into the bathroom and left her on the bathroom floor in the dark. B.B. testified that she could hear Clark moving around the apartment searching through papers and clothes. After about three hours, she heard a muffled cry from Foster, who had apparently remained in the living room. Soon thereafter, Clark entered the bathroom briefly to reassure B.B. "that

everything was going to be all right." Clark returned to the bathroom several minutes later and said, "Foster, do you care if I fuck your bitch?" B.B. heard no response from Foster and Clark then said, "Did you hear that? * * * He doesn't care." Clark then dragged B.B. into Foster's bedroom where he placed her, still bound and gagged, on her back on an air mattress. Clark then partially removed his clothing and pulled B.B.'s pajama pants to her ankles, and vaginally raped her for approximately 10 minutes. When the rape was over, B.B. saw Clark carry a condom into the bathroom. She then heard him flush the toilet and turn on the water. Clark returned with a washcloth and scrubbed B.B.'s genital area. He then went back to the bathroom, ran some water, and returned with the washcloth again. After he washed B.B. a second time, Clark pulled up B.B.'s pants and dressed himself. Clark next turned B.B. onto her stomach on the air mattress. From this position B.B. could see Foster's feet protruding from a laundry bag on the floor, which caused her to panic. Clark then told B.B. that Foster was dead and said, "Now it's time for the grand finale." Clark proceeded to kneel over B.B. and to place and hold a plastic bag over her head. He told B.B. to breathe and "[j]ust let go." Although B.B. was still bound and gagged, she was able to free her left hand and tear the bag off her face, at which point Clark became angry and swore at her. A minute or so later, Clark stood up, looked out the windows, and started snorting heroin. Shortly thereafter, he offered B.B. some crack cocaine by removing the gag and placing a lighted crack pipe to her mouth. After B.B. smoked the pipe, Clark replaced the gag, rebound her wrists, and rolled her up in some bed
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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

sheets. B.B. observed Clark try without success to throw Foster's body out the bedroom window. Clark then dragged the body out of the bedroom. B.B. ultimately heard a door in the apartment shut, then Foster's vehicle --a white, SUV-type truck--being started and a squealing of tires. Five to seven minutes later, Clark returned to the apartment. He unwrapped B.B. and unbound her feet and hands. He then forced B.B. to leave the apartment with him and threatened to kill her mother and children. At the time Clark made these threats, he was holding B.B.'s driver's license, which listed the address where her mother and children resided. When B.B. entered the apartment building hallway with Clark, she saw a neighbor she recognized. As she passed this neighbor, B.B. mouthed the words "Help me." The neighbor kept walking, and B.B. followed Clark out of the apartment building. Some people whom B.B. recognized were sitting on the front stairs of the building. She made eye contact with one of them as she followed Clark to Foster's truck, which was parked in the building's driveway. A neighbor then came out of the building and followed Clark and B.B., and as B.B. reached the truck, the neighbor grabbed B.B.'s arm and said to Clark, "She doesn't look like she wants to go with you." B.B. then turned and ran back into the building. B.B. testified that she ran through the building's second and third floor hallways and knocked on every apartment door as she ran by, not waiting to see if anyone would answer. She was ultimately admitted into a third floor apartment, and one of the apartment's occupants called 911. Other Witnesses for the State A Sexual Assault Nurse Examiner (SANE nurse) who examined B.B. in the early afternoon on July 16 testified that she found bloody discharge on B.B.'s cervix, suggesting an injury consistent with rough or forced sexual intercourse. A woman who was staying with her daughter in Foster's apartment building at the time of the murder testified that she saw B.B. leaving with Clark and mouthing the words "Help me." The woman's daughter testified that she and several other persons were gathered on the front steps of the apartment building when she saw Clark and B.B. emerge on the morning of July 16. The daughter said that she told Clark to let B.B. go. She also said that she saw Clark leave the scene in a white truck. A forensic scientist from the Minnesota Bureau of Criminal Apprehension testified that Clark's DNA was not found on evidence seized from the crime scene, including washcloths, bed sheets, a condom wrapper found in the bedroom, semen stains on the pants B.B. was wearing before and after the rape, and B.B.'s driver's

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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

license. The scientist also testified that Clark's DNA was not found on biological samples taken from B.B. by the SANE nurse. Several witnesses testified that they saw Clark in the Lake Harriett area of Minneapolis on the morning of the next day--Sunday, July 17. One of these witnesses saw Clark in a parking lot near the Lake Harriett concessions building, looking lost or confused. This witness observed Clark standing about 30 yards from a white truck, which was the only vehicle in the parking lot at that time. Another witness, who resided in the area, testified that Clark drove a white SUV into his driveway and onto the yard of a neighbor. While the witness was talking with Clark, the neighbor emerged from her house and said that she had called the police. Clark then sped from the scene in the SUV. One of Clark's cousins testified that Clark visited her that Sunday, and he was driving a white truck that she had never known him to drive. The cousin noticed that Clark had "a nice amount of money"--more than she had ever seen Clark carry. A Washington County police officer testified that one week later, in the early morning hours of July 24, Clark was arrested after he drove a station wagon in the wrong direction on a highway exit ramp and then failed to pull over for the police. Clark ultimately crashed into some large cement barriers and was taken to the Ramsey County Law Enforcement Center. A Minneapolis police officer testified that during the evening of July 24, the police responded to a radio call indicating that a body had been discovered near some railroad tracks in southeast Minneapolis. The body was ultimately identified as Foster's. Two of the responding officers testified that they observed beaten-down vegetation near the body, indicating that a vehicle had driven in the area. A forensic pathologist with the Hennepin County Medical Examiner's Office testified that Foster's body was partially buried under a pile of fresh dirt that "clearly didn't belong there" and was not part of the native landscape. The body was "packaged" in a laundry bag and two plastic bags covered Foster's head. A ligature surrounded Foster's head, holding a gag in place, and other ligatures bound his wrists and ankles. The

pathologist told the jury that in his opinion, Foster's death was a homicide. He said that Foster died of asphyxia, which could have been caused by someone placing bags over Foster's head or obstructing his pharynx. A University of Minnesota botanist testified that four plant fragments obtained from the undercarriage of Foster's truck were fragments of species present at the scene where Foster's body was found. The botanist said that two of the four species are not commonly found in the southern part of Minnesota. Clark's Recorded Statements
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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

St. Paul Police Sergeant Steven Frazer, the primary investigator on Foster's case, testified regarding three interviews he conducted with Clark after Clark was arrested--two on July 26 and one on August 3. Frazer said that he conducted the interviews together with Minneapolis Police Officer Michael Doran, for whom Clark had worked as a paid informant. The state played for the jury an audiotape of the first interview and videotapes of the second and third interviews. During the first interview, Clark showed surprise on learning that Foster was dead. Clark acknowledged that he was in Foster's apartment with several other persons on the night Foster was murdered, but he vehemently denied that he assaulted Foster or that he witnessed any assault against Foster. Clark asserted that he did not have sex with B.B. that night, and that he had not driven Foster's truck after Foster died. During the second interview, Clark told the officers that he saw a mutual acquaintance "snap" during an argument with Foster and choke Foster to death. He said he did not know that Foster had been tied up. He admitted driving Foster's truck away from the apartment after the murder but denied that Foster's body was in the truck. During the third interview, Clark ultimately admitted that he tied up and gagged Foster and tied up B.B. in order to rob Foster of his drugs. Clark denied intending to kill Foster and said that Foster died accidentally from a heart attack or drug overdose after Clark gagged him. Clark said that he placed a plastic bag over Foster's head after he knew that Foster had died. Later in the interview, Clark stated that the plastic bag was inadvertently caught up with Foster's body when it was wrapped in a laundry bag. Clark said that a person named "Boo" [3] and other persons "disposed of" Foster's body. He said he did not know where Foster's body

was taken. He again denied having sex with B.B. or placing a bag over her head. Finally, he admitted leaving the apartment in Foster's truck. Clark's Testimony Clark testified on his own behalf. Clark said that he stayed overnight at Foster's apartment several nights before and including July 16. He began staying there when he realized that Foster's apartment had become a hub for certain drug-related activities that he was being paid to help Officer Doran investigate. He was using drugs during this time period, partly to avoid raising the suspicions of persons under investigation. According to Clark, Foster's roommate and D.T. brought Clark to Foster's apartment during the early morning hours of July 16, but they eventually left, at which point Clark was alone with Foster and B.B. Clark asked Foster for drugs, but Foster refused. Clark then sat on the couch and "had words" with Foster. Sometime

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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

later that morning, Clark and B.B. walked into Foster's bedroom. Clark saw approximately 380 grams of heroin in the bedroom, and B.B. told him about cocaine located elsewhere in the apartment. Clark testified that he then decided to take the drugs in Foster's apartment as part of a set-up. He believed that by "stealing" the drugs, he would motivate Boo and others to pursue him with some guns that Doran wanted to confiscate. Taboo was in Foster's apartment by the time Clark decided to take the drugs, and Taboo knew what Clark was planning to do. Clark used a kitchen knife to threaten Foster and B.B. He tied up and gagged Foster, and also tied up B.B. to "make it look good for Foster." Clark said he did not have any guns during the incident. He also said he told B.B. beforehand that he planned to steal the drugs, and B.B. did not attempt to stop him. Clark stated that after he tied up Foster and B.B., he began searching for drugs. He then carried B.B. to Foster's bedroom after she signaled that she wanted to be moved. B.B. slipped out of the ligatures once she was in the bedroom, and Clark did not retie her. B.B. then told Clark where to find the drugs. Clark ultimately bagged four kilograms of cocaine and obtained a ride from an acquaintance of Taboo's. He said that when he left, Taboo was still at the apartment. Clark brought the drugs to a Ross Street residence and returned to Foster's apartment about 10 minutes later, at around 6 or 7 a.m. The person who gave Clark a ride did not stay, and Taboo left the apartment shortly after Clark returned. Clark testified that in an effort to "check on" Foster, he slapped Foster's face, but Foster did not move. Clark said he then realized that Foster was dead. Clark sat and cried for approximately a half hour while thinking about what he had done. Clark then told B.B., who had been in the back of the apartment getting high, what had occurred. B.B. gave Clark the keys to Foster's truck so Clark could drive to a public telephone to call Boo. [4] When Clark returned 15 minutes later, he found that B.B. had tried to "make the house ransacked."

Boo arrived at Foster's apartment at 8 or 9 a.m. with two men Clark did not know. Boo told Clark he would "take care of" things. Clark said he initially helped look for something in the apartment to "put [Foster's body] in," but he then became too upset to help, and he went to the back of the apartment with B.B. Clark said that sometime later, he went to use the bathroom and when he emerged, Boo was gone, and he had apparently taken Foster's body with him. Clark and B.B. then left the apartment together. When Clark and B.B. reached Foster's truck, B.B. changed her mind and walked back to the apartment building after a neighbor said to Clark, "She don't want to go with you." After asking B.B. if she was sure she wanted to stay and seeing

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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

B.B. start "breaking down," Clark drove to the Ross Street residence alone. He then moved the drugs from that residence to a Minneapolis home that Doran had previously searched. He left the drugs at the Minneapolis home and then went to a public telephone to call Doran. Doran did not answer his telephone, but Clark did not leave a message because what had happened was "too serious." Clark testified that he drove into the yard of the residence near Lake Harriet on July 17 in order to avoid being caught by some men who were chasing him because of the drugs he had stolen. He then drove to the Lake Harriet park area to use a pay telephone to call a cousin. When he told the cousin what had happened, the cousin told him, "I already know. I [saw] it on the news." The cousin drove to Lake Harriet to give Clark a ride, and Clark left Foster's truck in the Lake Harriet parking lot. Clark said he lied to the police when he was interviewed on July 26 because he was going through withdrawal sickness and because he wanted to speak only with Doran, not Frazer. According to Clark, Doran had visited him in his cell before the first interview and had instructed him not to speak about the investigation in which Clark was serving as a paid informant. Clark said he told the truth when he spoke with Doran alone during the August 3 interview. He said that he did not intend to kill Foster, he did not place a bag over Foster's head and suffocate him, and he did not have any sexual relations with B.B. He said he did not give the police all of the details on August 3 that he gave to the jury because of the instruction he had received from Doran regarding Doran's investigation. State's Rebuttal Witness After the defense rested, the state called Doran as its sole rebuttal witness. Doran confirmed that Clark worked for him as a paid informant in the summer of 2005. The last time Doran had contact with Clark before Foster's murder was on July 13, and his first contact with Clark after the murder was at the Ramsey County Law Enforcement Center (LEC) on July 26. Doran said he did not speak with Clark in his cell before he and Frazer interviewed Clark. Doran indicated that all conversations with Clark after Foster's murder took place in Frazer's presence, except for the few minutes in which Doran and Clark were alone during the August 3 interview and a later September interview that was not previously discussed at trial. Clark's Motion to Suppress Statements to the Police Before Clark's trial began, he moved the district court to suppress the statements he made during his interviews with Frazer and Doran on July 26 and August 3. Clark argued that when he made the statements he was mentally incapacitated as a result of heroin withdrawal, and therefore, he did not knowingly, voluntarily,
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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

and intelligently waive his rights to remain silent and to have his lawyer present. He also argued that his statements were the product of coercion, and that the state violated his Sixth Amendment right to counsel and our case law respectively by interviewing him without his lawyer present and without sufficient notice to his lawyer. The court conducted a pretrial hearing on Clark's motion and heard testimony from several witnesses. First July 26 Interview The first interview on July 26 took place at the LEC before Clark's arraignment and lasted for approximately 40 minutes. Clark was not yet represented by counsel. At the start of the interview, Frazer and Doran obtained a signed Miranda waiver form from Clark. Clark wrote his initials next to each of four points on the form, indicating that he understood his Miranda rights. Frazer said that although Clark appeared to be in a drug withdrawal state during this interview, he was completely appropriate and timely with his answers. Clark testified that before the first interview on July 26, Doran visited him in his cell for about 10 minutes and told him not to discuss with anyone his work as a confidential informant. Clark said that Doran also told him "I'm your attorney. I can prove [sic] better than your attorney. Just do what I'm telling you to do." Clark stated that Doran also said he would "take care of everything," which Clark interpreted as a promise "to help [him] in some kind of way." Second July 26 Interview Frazer testified that at some point after the first interview ended but before Clark was arraigned, Clark told LEC staff that he wanted to speak with the officers after his arraignment. Frazer said that by the time he learned of Clark's request, he knew that a lawyer had been appointed to represent Clark and therefore, he had to follow certain procedures before conducting another interview. Frazer contacted Assistant Ramsey County Attorney Charles Balck for advice on how to proceed. Balck told Frazer that he would contact the public defender's office and get back to Frazer. Balck subsequently contacted Frazer before the arraignment hearing ended and told him that the officers could speak with Clark if Clark initiated contact because the public defender's office was "aware of the situation." Balck testified that he could not remember speaking to Frazer on July 26 but that every time he learned about a request by Clark to speak with the police, he "contacted, or attempted to contact" someone at the public defender's office. Tom Handley, who was appointed Clark's public defender at Clark's arraignment hearing, testified that he spoke with Balck by telephone on the day of the arraignment or the next day. Handley said that during this

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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

conversation, he told Balck that it would "be a better practice to not [have the officers] speak to Mr. Clark, just [to] avoid any [legal] problems down the road." Handley said that Balck might have told him on the day of the arraignment that the police planned to speak with Clark. Frazer and Doran next met with Clark after Clark's arraignment. The interview lasted approximately 50 minutes and began with the following exchange: Frazer: Clark: Frazer: Clark: Do you remember this paper we went over with your rights on it earlier? Yeah. And you asked us to talk to you this time, right? You want to talk to us? Yeah.

Shortly thereafter, Frazer reviewed with Clark the Miranda waiver Clark signed earlier that day, ending with the following statements: Frazer: You have the right to talk to a lawyer and to have the lawyer with you during any questioning. If you cannot afford a lawyer one will be appointed for you and you may remain silent until you have talked to a lawyer. You remember [these rights] from earlier when we talked? Yeah. I just talked to him. He's pissed off. *** Frazer: Clark: Having these rights in mind are you willing to talk to us like you asked us downstairs-- Yeah * * * [b]ut right now my mind ain't right. * * * I gotta get some detox. * * * It's coming stronger and stronger, man.

Clark:

Frazer then asked if Clark wanted him to check on the nurse's whereabouts. Clark assented, and Frazer left the interview to request medical treatment for Clark. During Frazer's brief absence, Clark continued to volunteer information to Doran about Clark's involvement in Foster's case. When Frazer returned, he resumed questioning Clark. Toward the end of the interview, Frazer told Clark about evidence that contradicted or undermined Clark's account of the case. Clark then stated, "Let me do this here. Let me get dried out. Call ya'll back. `Cause I ain't feeling it." After some brief conversation, Clark restated his desire to "get dried out." Soon thereafter, the interview ended with Doran stating that Clark would have to contact the officers if he wanted to talk to them again because the officers could not initiate any further conversations. After the officers left the room, Clark yawned and lay down on the floor. When Frazer returned to the room a few minutes later and asked what Clark was doing, Clark said that he was "stretching out" and that his symptoms were worse than they were before. At Frazer's request, Clark stood up off the floor and seated

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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

himself in a wheelchair. Frazer assured Clark that a nurse would be available shortly, and he wheeled Clark out of the interview room. Clark testified at the pretrial hearing that on July 26, he was vomiting "everywhere" as a result of drug withdrawal, and that he asked to be brought back to his cell after the arraignment hearing. He said he did not ask to, nor did he want to, speak to the officers a second time that day. He said that he only waived his right to remain silent during the second interview in order to speak with Doran about their earlier conversation in Clark's cell. Events Leading up to August 3 Interview Frazer testified that the following day, July 27, he received voicemail messages from LEC staff indicating that Clark wished to speak with him and Doran. Frazer contacted Balck, who told him that Clark's lawyer needed to be contacted before any interviews. Balck instructed Frazer to inform Clark that (1) the state was having trouble reaching Clark's lawyer, Tom Handley; and (2) Clark should try telephoning Handley. Frazer testified that Balck told him the officers were not to interview Clark again until Handley received notice and called Frazer back. Frazer then visited Clark at the LEC, conveyed the above information, and confirmed that Clark had Handley's phone number. During this meeting, Clark asked Frazer if Frazer could "tell [him] something off the record." Frazer declined to speak about the investigation and told Clark that he needed to contact his lawyer before he and the police could communicate. In the meantime, the public defender's office had decided to reassign Clark's case from Handley to another lawyer. Connie Iversen, a supervisor charged with reassigning Clark's case, testified that she learned late in the day on July 27 that Balck had telephoned to say that Clark wanted to speak with the police. Iversen had not yet reassigned the case when she learned of Balck's call. Because Iversen knew that the LEC would close for dinner service at 4 p.m., she went to the LEC to speak with Clark rather than sending another lawyer. Iversen said that she met with Clark for at least an hour and that when she left the meeting, Clark did not want to talk to the police. Iversen said that she left a message for Balck later in the evening on July 27, conveying Clark's position. Frazer testified that on Thursday, July 28, he again received notice that Clark wished to speak with him and Doran. Frazer then contacted Balck, who told him that Balck and Iversen had set a time for the officers to interview Clark. Later that day--apparently at the time Balck and Iversen had set--Frazer and Doran arrived at the LEC. Frazer said that he never reached the room where Clark was waiting because Iversen "confronted" him
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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

in a lobby area near that room and told him that Clark would not be speaking with the officers that day. Frazer said that when he insisted on hearing that information directly from Clark, Iversen stepped in front of him, "basically bump[ed] into [him]," and told him that he could not go near her client. Frazer stated that the confrontation with Iversen continued in the same manner for a few minutes and did not end until he told Iversen that her conduct was unprofessional and walked away. Iversen gave a substantially different account of the incident with Frazer and the events leading up to that incident. Iversen said that she received a message from Balck late in the day on July 28, stating that Clark had again contacted the police in an effort to speak with them. Iversen said that she was told that Frazer planned to interview Clark at 6 p.m. that day. On receiving this information, she immediately went to the LEC to speak with Clark. Iversen found the LEC closed for dinner service, and while she waited for it to reopen, she went next door to the police station to tell Frazer that she would soon be meeting with Clark and that in all likelihood, Clark would not agree to talk to Frazer. Iversen said that she was unable to meet with Frazer, but a staff person at the police station telephoned Frazer on her behalf. After the telephone call ended, the staff person told Iversen that Frazer did not want to speak to her and that "he was going to come down and talk to [Clark] regardless." Iversen then told the staff person to give Frazer a message that he could meet with Clark in her presence on the following morning, Friday July 29. Iversen testified that she next returned to the LEC, where she was admitted to speak with Clark at 5:30 p.m. She said that after she met with Clark, she encountered Frazer in an LEC hallway area and told him that Clark did not want to speak with him. She stated that Frazer was rude, angry, and loud, and that he invaded her "personal space." She also said that Frazer asked her about the meeting she had suggested for Friday, July 29. Iversen then told Frazer that she did not think that meeting would happen because Clark had just told her that he no longer wanted to talk to the police based on her advice. Iversen said that after this conversation with Frazer, she either spoke with Balck or left him a message to convey that Clark did not want to speak to the police. The following day, Iversen assigned Clark's case to Richard Sarette and Iversen had no further involvement in the case. Frazer testified that on August 2, he heard from LEC staff that Clark wanted to speak with him and Doran. Frazer then contacted Balck and told him that the officers wanted to schedule a time through the public defender's office to interview Clark. Frazer told the court that during the

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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

whole day, on [August 2], [he and Balck] were in contact maybe two or three times, and [Balck] was basically [saying] "I'm still trying to get this message through, we want to do this right, we're going to take the high road on this, I'll let you know," and that kind of progressed to the end of the day, on [August 2], and [Frazer] had not heard a definitive answer. But Mr. Balck relayed that Miss Iversen was very frustrated with her client wanting to continue to talk even after her advice, and that ultimately boiled over into a phone call when, [Frazer] believe[d], Mr. Balck was on his off time, away from the office, and he called [Frazer] and said, "Well, we've waited this long, we're just going to have to wait until we get this thing ironed out. It isn't going to happen today," meaning [August 2], and it didn't. Meanwhile, Frazer continued to receive calls through August 3 that Clark wanted to speak with the police. Frazer said he again contacted Balck, who stated that he would be in contact again with the public defender's office and that he would be setting up a * * * definitive time when we would have this interview, because it was getting to the point where he was having a hard time getting an answer out of the public defender's office, and he basically told [Frazer] that he was going to pick a time and say we would be there, and their lawyer * * * could either be there or not at their choice. Frazer said that he later heard back from Balck that "a notification had been made to the public defender's office and that they were aware of the [9 p.m. interview] time," and that regardless of whether Clark's lawyer was present, Frazer should proceed with the interview. It is not clear from Balck's testimony whether he made any efforts to contact the public defender's office on August 2. He said that shortly after 8:40 p.m. on August 3, he left a voicemail message for Iversen or Handley at the public defender's office, indicating that Clark had requested to speak to the police and that "there would be contact with the police as a result of the defendant's contact." Balck said he also left a message with the after-hours answering service for the public defender's office and that LuNhia Yang, an on-call lawyer, subsequently contacted him at home. Balck testified that he received Yang's call at approximately 10:40 p.m., but Yang told the court that she talked to Balck sometime before sending an e-mail message to Iversen at 9:56 p.m. Balck said that he gave Yang the same information he had left in the voicemail message for Iversen or Handley. Balck testified that although he was unable to reach Iversen or Handley directly, he did not instruct Frazer to wait to interview Clark on August 3. He could not remember whether either Handley or Iversen ever told him that Clark did not wish to speak to police. August 3 Interview Starting at approximately 9 p.m. on August 3, Frazer and Doran conducted their third interview with

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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

Clark. The interview lasted approximately two hours and Clark's lawyer was not present. Frazer read Clark his Miranda rights at the beginning of the interview and obtained a signed waiver form. Shortly thereafter, the following exchange occurred: Frazer: Clark: Frazer: Clark: Frazer: Clark: Frazer: Clark: Okay. Just so we're clear * * * I got a call from the Ramsey County [d]eputies that said you would like to talk to [Doran] and [me] again about the case. Is that true? Yeah. And you know you have a lawyer assigned to this case for you, right? Yeah, yeah. And you know that you can have him or her with you if you wanted them, right? Yeah. And you've chosen to talk to us without them being here, right? Yeah.

Frazer testified that Clark appeared to have "completely moved beyond the withdrawal symptoms" he complained of in the earlier interviews and that he appeared to be free of drugs and alcohol. Clark's testimony about the third interview differed from that given by the police officers. Specifically, Clark denied making a request to speak to the officers about the case in the days leading up to August 3. He also testified that he had smuggled heroin into the LEC and that he was high during the August 3 interview. Based on the testimony above, the district court denied Clark's motion to suppress the statements he made during the July 26 and August 3 interviews. State's Motion to Admit Clark's Prior Conviction Before Clark's trial started, the state notified Clark of its intent to introduce several past convictions for impeachment purposes if Clark chose to testify. Shortly before the state rested its case in chief, the state moved the district court to admit only one of these convictions, but for substantive purposes--specifically, to prove Clark's intent with respect to the alleged rape of B.B. After hearing argument on the state's motion, the district court agreed to allow the reading of a transcript in which Clark pleaded guilty in 1994 to attempted first-degree criminal sexual conduct. Conviction and Appeal The jury found Clark guilty of all eight counts of murder and attempted murder. The district court convicted Clark of all counts except the lesser-included offenses of second-degree intentional murder and attempted second-degree intentional murder, which counts the court dismissed. The court then sentenced Clark to life imprisonment without the possibility of parole. [5] On this appeal, Clark argues that the district court erred

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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

on three grounds when it refused to suppress the statements he made to the police during the two July 26 interviews and the August 3 interview. Specifically, Clark asserts that the statements should have been

suppressed because (1) his heroin withdrawal symptoms prevented him from voluntarily waiving his right to silence during the two July 26 interviews; (2) his statements in all three interviews were the product of coercion or otherwise improper interrogation techniques by the police; and (3) the state violated Clark's Sixth Amendment rights and Minn. R. Prof. Conduct 4.2 by conducting post-arraignment interviews with Clark outside the presence of his lawyer. Clark also argues that the court abused its discretion when it admitted his 1994 conviction for substantive purposes. I. We first address Clark's argument that the district court erred when it concluded that he voluntarily waived his right to remain silent during the two July 26 interviews. The Fifth Amendment to the U.S.

Constitution, made applicable to the states by the Fourteenth Amendment, prohibits the government from compelling a person to testify against himself. State v. Scott, 584 N.W.2d 412, 417 (Minn. 1998). A person may waive his Fifth Amendment right to remain silent, but such a waiver must be knowingly, intelligently, and voluntarily given. Id. (citing, among other decisions, Miranda v. Arizona, 384 U.S. 436, 475 (1966)). When deciding whether a defendant voluntarily waived his right to remain silent, courts consider the totality of the circumstances based on factors such as the defendant's age, maturity, intelligence, education, experience, and ability to comprehend. State v. Linder, 268 N.W.2d 734, 735 (Minn. 1978). Other relevant factors include, among others, the lack of or adequacy of warnings, the length and legality of the detention, the nature of the interrogation, any physical deprivations, and limits on access to counsel and friends. Id. Findings of fact surrounding a purported Miranda waiver are reviewed for clear error, and legal conclusions based on those facts are reviewed de novo to determine whether the state has proven by a preponderance of the evidence that the defendant waived his Miranda rights voluntarily. State v. Burrell, 697 N.W.2d 579, 591 (Minn. 2005). Here, the district court made a number of detailed factual findings that correspond to the Linder factors. The court found that Clark is 33 years old and sufficiently intelligent "to comprehend questions asked of him, including legal terminology," and that Clark is a "mature individual with a lot of `street smarts,'" whose extensive experience with the criminal justice system began in adolescence and included three prior felonies. The court also found that Clark received adequate Miranda warnings at the beginning of each interview and acknowledged that he understood his rights, and that Clark initiated the second
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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

July 26 interview. Finally, the court found that (1) Clark "did not appear to be in physical distress" during the interviews; (2) Clark "demonstrated a clear understanding of the questions"; (3) Clark "appeared willing to talk for hours"; and (4) Clark's "own attorneys never believed that [he] was unable to track and understand what was going on" and never requested a psychological evaluation for possible mental illness. Our review of the recorded interviews provides strong support for the district court's findings, including those concerning Clark's physical condition. Clark's interaction with the officers at the beginning of each interview shows that he understood the Miranda rights he was waiving, and we see no evidence to substantiate Clark's assertion that his heroin withdrawal symptoms interfered in any substantive way with his cognition or volition. Further, while Clark complained about these symptoms during both July 26 interviews and sometimes placed his head on the table during the second interview, he was consistently responsive and coherent. The district court's factual findings--which we cannot deem clearly erroneous on the record before us-- support a conclusion that under our case law, Clark voluntarily waived his Miranda rights. Apposite cases include State v. Williams, 535 N.W.2d 277, 288 (Minn. 1995), in which we identified as relevant the defendant's extensive criminal background and concomitant experience in the criminal justice system; and State v. Blom, 682 N.W.2d 578, 615 (Minn. 2004), in which we noted that although the defendant was on prescription drugs, there was no evidence that he was materially impaired when he "spoke in a normal tone of voice, freely and voluntarily gave answers to questions, and was alert, lucid, cooperative, and calm." [6] In light of these and

other cases, we hold that the district court did not err when it concluded that Clark voluntarily waived his right to remain silent during the two July 26 interviews. II. We next address Clark's argument that the district court erred when it refused to suppress the statements he made to police during the three interviews because these statements were the involuntary product of coercion or otherwise improper interrogation techniques by the police. When deciding whether a defendant's statement is involuntary, courts inquire whether police conduct, "together with other circumstances surrounding the interrogation, [was] so coercive, so manipulative, [and] so overpowering [as to] deprive[] [a defendant] of his ability to make an unconstrained and wholly autonomous decision to speak as he did." State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991). This totality-of-the-circumstances inquiry "significantly overlaps" the approach courts use in determining whether a defendant voluntarily waived his Miranda rights. Williams, 535 N.W.2d at

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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

287. Courts look with disfavor on implied and express promises made by the police during interrogation, but such promises do not automatically render a statement involuntary. State v. Ritt, 599 N.W.2d 802, 808 (Minn. 1999). We review a district court's conclusion as to the voluntariness of a statement de novo to determine whether the state proved voluntariness based on the totality of the circumstances. Id. at 808. We make this determination based on all factual findings that are not clearly erroneous. Id. Here, the court made several detailed factual findings relevant to deciding whether Clark's confession was voluntary. For example, the court found that Clark initiated two of the interviews, see Blom, 682 N.W.2d at 615 (noting that the defendant initiated the interview); that Clark was not held in poor conditions and was provided with cigarettes, see Ritt, 599 N.W.2d at 810 (noting that defendant "was allowed to smoke freely" during interview); and that the officers kept the interviews low-key and fairly short, see State v. Thaggard, 527 N.W.2d 804, 812 (Minn. 1995) (noting that interview was relatively short). The district court also found that Clark was not subjected to threats or trickery and that the police did not "employ any improper, coercive atmosphere while interviewing [Clark]." But we note that Frazer and Doran made several comments during the July 26 and August 3 interviews that could arguably be characterized as implied or express promises. For example, Doran told Clark at the beginning of the first interview on July 26 that today's the luckiest day you got going for ya. And do you know why? `Cause today you're gonna set yourself free. All this shit that's happened to you in the past up `til now--is done. It's over. From this day forward Courtney--look me in the eye--from this day forward your future's spotless. You can never fuck up again if you don't want to. Okay? So what I'm telling you--man to man, today, nothing else will matter. We're gonna get all those fuckin' demons and all that shit off your back. Okay? You're gonna be real with me like you have in the past, and we're gonna deal with this today. Okay? (emphasis added). Moments later, immediately after Clark signed a Miranda waiver form, Doran told Clark, Courtney, I wish I had two days to talk to you. We'll do as much as we can now. I want you to dig down deep and let's get every fuckin' demon off your back. Okay? Like I said, no longer are we going to live like this anymore. The old Courtney Clark is dead. As of right now--today-- your future is spotless. You've got nothing wrong in your future. If you talk to your God and find it in your soul right now let's get all those fuckin' demons off your back. Man to man, okay? I want you to tell me what the fuck happened. During the second July 26 interview, Doran and Frazer encouraged Clark several times to "get the demons off"

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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

his back, but neither officer alluded to Doran's comment in the first interview that Clark's future would be "spotless" if he told them the truth. At the beginning of the August 3 interview, Doran and Clark had the following exchange: Doran: Tonight's the night it's all cleared up. From this day forward we're done with this, okay? I don't want to keep coming back here and talking[;] we're gonna get this shit done tonight. And then we're gonna carry on with our lives. Like I said before C, your future is spotless--starting today, your future is spotless. Compared to what? C, ya can't screw up anymore. Today's a good day. Today is a good day. And I think tonight after your conversation you're gonna set your soul free, you're gonna tell me exactly what happened in your own words * * * okay? [shaking head yes] That's what's gonna happen tonight and I feel that, I feel good about it, otherwise I wouldn't have come here * * * .

Clark: Doran:

Clark: Doran:

Later in that interview, Frazer and Doran indicated to Clark that while a conviction for first-degree premeditated murder would necessarily result in a sentence of life imprisonment without the possibility of parole, "something other than a preplanned * * * murder of Foster--and rape of [B.B.]" might result in Clark "getting out [of prison] sometime." Shortly thereafter, Clark asked if he could speak to Doran alone for 5 minutes. Frazer left the interview room, and Doran said: I know what happened. I think you got so whacked out, you lost your head. You didn't plan this, you didn't plan to kill--* * * But because you were high and you were whacked out, you lost your head. You didn't plan this. C, you didn't plan this, but it ended up that way. Clark then said, "That's right," to which Doran responded, This is a life--this is a life sentence. Now if you want to tell the real deal--tell the real deal-- what happened and cooperate and do the right thing and not tell lies--there might be a break in this. They might not give you life without parole. In the exchange that followed, Doran told Clark that premeditated versus accidental killing was "the difference between [Clark] spending the rest of [his] life in prison with no parole" and "serving your time * * * and then having some form of life after prison." Moments later, Doran again told Clark that if Clark told the truth, his future would be "spotless." Clark then asked Doran, "What you gonna do for me?" Doran said he would do whatever he could and would tell "them" that Clark was being honest and had not premeditated Foster's murder. Clark then proceeded to give Doran an account that was largely consistent with the testimony he ultimately gave at trial. Clark repeated this account when Frazer returned to the room.

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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

Clark has a colorable argument that the officer's comments with respect to the "spotless" future that would await him were improper because they were potentially misleading. But a careful review of the recorded interviews and transcripts reveals that Clark did not interpret the officers' spotless future comments as promises of lenient treatment. See Thaggard, 527 N.W.2d at 811-12 (describing as "key" the fact that an implied promise of lenient treatment did not lead the defendant to believe that he would avoid prosecution if he confessed). For example, after one of these comments, Clark asked perceptively, "Compared to what?" Doran responded by repeating his earlier statement that Clark could "set [his] soul free" (emphasis added). In the context of the interviews as a whole, the officer's "spotless" future and related comments are most properly characterized as appeals to Clark's conscience and personal integrity--not as implied promises for lenient treatment in exchange for a confession. As to the officers' suggestions that Clark could avoid receiving a sentence of life imprisonment without parole if he confessed to accidentally killing Foster, it is important to distinguish between comments identifying the potential sentences imposed for different degrees of murder and express promises that a defendant will be charged with a lesser offense in exchange for his confession. See State v. Slowinski, 450 N.W.2d 107, 112 (Minn. 1990). In Slowinski, the defendant argued that police used coercive methods to obtain his confession when they (1) "implied that by confessing, [the] defendant might be charged with a lesser crime"; and (2) "suggested they had influence with the county attorney" regarding the crimes to be charged. Id. at 111-12. In evaluating Slowinski's argument, we stated that it would not be "improper for police officers to inform a defendant of the various degrees of murder," but it would be improper for the police to suggest that they had influence with the county attorney to argue for lenient treatment. Id. at 112. We nonetheless concluded that improper suggestions of influence with the county attorney "were not the kind of statements that would make an innocent man confess." Id. Here, neither Frazer nor Doran promised Clark that he would be charged with a less serious offense if he admitted to accidentally killing Foster; rather, the officers indicated that if Clark cooperated and told the truth, "there might be a break" and Clark "might not [receive] life without parole" (emphasis added). Further, while Doran told Clark that Doran would do whatever he could and would tell "them" that Clark was being honest, this statement does not convey any assurance that the officers could substantially influence the disposition of Clark's case. See State v. Beckman, 354 N.W.2d 432, 437 (Minn. 1984) (upholding the admission of a confession despite interrogator's comment that defendant's cooperation would be brought to the district court's
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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

attention). For the foregoing reasons, we conclude that Frazer's and Doran's comments--while troubling in some respects--cannot reasonably be construed as comments that would make an innocent man confess. We also conclude that contrary to Clark's contention, the officers did not make improper threats against Clark in an effort to obtain his statement. Near the end of the first July 26 interview, Frazer told Clark that "if you don't talk again, * * * we're gonna have to proceed ahead with what other people have said about you * * * and I don't think you want that to happen." At other points during the interviews, Frazer attempted to persuade Clark to talk by describing inculpatory evidence that had already emerged or could reasonably emerge in the officers' investigation. But Clark does not argue that Frazer misrepresented the emerging evidence in the case, and we have held that it is not improper for interrogators to inform a defendant of the evidence marshaled against him. See, e.g., Pilcher, 472 N.W.2d at 334. Notwithstanding the case law discussed above, Clark contends that the combined effect of the officers' interrogative techniques and his heroin withdrawal symptoms compels a conclusion that his July 26 statements were not voluntary. [7] In support of this contention, Clark points to indications in the record that he was

suffering flu-like symptoms, including sweating and nausea. Clark also points to his testimony that he vomited before the interviews. Accepting these facts as true, we still cannot conclude that Clark's physical discomfort-- even when combined with allegedly improper comments by the police--deprived him of his ability to make an unconstrained and wholly autonomous decision to speak as he did. To the contrary, rather than succumbing to the officers' interrogative techniques, Clark insisted throughout both July 26 interviews that he had no involvement in Foster's murder. The fact that Clark adhered to a fabricated account of Foster's death also shows that his will was not overborne. See id.; Ritt, 599 N.W.2d at 810 (noting that while the interrogation "may have been unpleasant" for the defendant, "there [was] little indication that her will was overborne" in light of her continued denial of possessing the criminal intent that was eventually proved at trial). For all of the foregoing reasons, we hold that the district court did not err when it concluded that Clark's statements during the two July 26 interviews and the August 3 interview were voluntary and therefore admissible. [8] III. We now turn to Clark's claims regarding violations of his Sixth Amendment right to counsel and Minn.

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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

R. Prof. Conduct 4.2 with respect to the second July 26 interview and the August 3 interview (post-arraignment interviews). In his brief, Clark characterized these claims as related, if not overlapping. Specifically, he asserted that "part of" an accused person's right to counsel "is based on" Rule 4.2. But at oral argument, Clark conceded that a Sixth Amendment claim is analytically distinct from a Rule 4.2 claim and that each is governed by a different body of law. Having made this distinction, Clark focused his argument on the state's alleged violation of Rule 4.2. It is not clear whether Clark's comments at oral argument constituted an implicit withdrawal of his Sixth Amendment claim. Accordingly, we first address whether the state violated Clark's Sixth Amendment right to counsel, and second, whether the state violated Rule 4.2.

Sixth Amendment Right to Counsel The Sixth Amendment to the U.S. Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to * * * have the assistance of counsel for his defence." U.S. Const. amend. VI. This right attaches as soon as the accused person is subject to adverse judicial proceedings, including arraignments. See, e.g., United States v. Gouveia, 467 U.S. 180, 187-88 (1984). An accused person can waive his Sixth Amendment right to counsel, but the government bears the burden of proving that the person "understood that he had a right to have counsel present during an interrogation and that he intentionally relinquished or abandoned that known right." Giddings v. State, 290 N.W.2d 595, 597 (Minn. 1980) (citing Brewer v. Williams, 430 U.S. 387, 404 (1977)); see also State v. Kivimaki, 345 N.W.2d 759, 763 (Minn. 1984) (adopting the Eighth Circuit's conclusion that the validity of a waiver of the right to counsel under either the Sixth or Fifth Amendment "is judged by essentially the same standard"). In deciding whether the government has met its burden, courts consider the circumstances of each case, including the age, experience, and background of the defendant. Giddings, 290 N.W.2d at 597. In this case, the district court concluded that the state met its burden of proving that Clark "voluntarily, knowingly, and intelligently abandoned or relinquished" his known right to counsel during his post-arraignment interviews. This conclusion is supported by the court's factual findings regarding (1) Clark's age, experience, and background; and (2) the adequacy of the Miranda warning that police gave to Clark at the second July 26 interview, which warning explicitly addressed Clark's right to have a lawyer present. As previously stated, these findings are not clearly erroneous on the record before us. Moreover, with respect to the August 3 interview, the transcript indicates that shortly after Frazer gave Clark a Miranda warning, the following
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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

exchange occurred: Frazer: Clark: Frazer: Clark: Frazer: Clark: [Y]ou know you have a lawyer assigned to this case for you, right? Yeah, yeah. And you know that you can have him or her here with you if you wanted them, right? Yeah. And you've chosen to talk to us without them being here, right? Yeah.

For the foregoing reasons, we hold that the district court did not err when it concluded that the state did not violate Clark's Sixth Amendment right to counsel by conducting the post-arraignment interviews. Minnesota Rule of Professional Conduct 4.2 Minnesota Rule of Professional Conduct 4.2 provides: In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. "[O]ur case law clearly establishes that [Rule] 4.2 applies to prosecutors involved in custodial interviews of a charged suspect." State v. Miller, 600 N.W.2d 457, 464 (Minn. 1999). Moreover, police contact with a suspect may be attributed to a prosecutor when the prosecutor orders or ratifies the police contact, as apparently happened in this case. Id. The purpose of Rule 4.2 is to protect the represented individual "from the supposed imbalance of legal skill and acumen between the lawyer and the party litigant." Id. at 463 (quotation marks omitted). In this case, the district court admitted Clark's statements from the post-arraignment interviews after finding that Clark's lawyer had notice of the interviews and an opportunity to be present. Clark essentially argues that the district court misconstrued what Rule 4.2 requires, and that the state violated the rule by failing to obtain his lawyer's consent before conducting the interviews. The state argues that the court properly construed and applied Rule 4.2, and further, that suppression of Clark's statements would be unwarranted even if the state did violate the rule. In light of these arguments, we first consider what steps the state must take when Rule 4.2 applies before interviewing a represented criminal defendant outside the presence of the defendant's lawyer. We then decide whether the state took those steps here, and if not, whether the state's violation of Rule 4.2 warrants suppression of Clark's statements. Rule 4.2 Requirements

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State of Minnesota, Respondent, vs. Courtney Bernard Clark, Appellant. A06-1765, Supreme Court, September 13, 2007.

Precisely what Rule 4.2 requires of the state in the context of a criminal case is a question of law we review de novo. See Lennartson v. Anoka-Hennepin Indep. Sch. Dist. No. 11, 662 N.W.2d 125, 129 (Minn. 2003). In Miller, we described the scope of Rule 4.2 as follows: [Rule] 4.2 protects the right of counsel to be present during any communication between the counsel's client and opposing counsel. The focus of [Rule] 4.2 is on the obligation of attorneys to respect the relationship of the adverse party and the party's attorney. * * * [T]he party cannot waive the application of [Rule 4.2]--only the party's attorney can approve the direct contact and only the party's attorney can waive the attorney's right to be present during a communication between the attorney's client and opposing counsel. 600 N.W.2d at 464 (citing United States v. Lopez, 4 F.3d 1455, 1462 (9th Cir. 1993)) (emphasis added). Based on the passage above and the plain language of Rule 4.2, we agree with Clark that a lawyer representing a criminal defendant is owed more than notice and an opportunity to be present before the state interviews the defendant about the subject of the representation. We also agree that the operative word in Rule 4.2 is "consent." The more difficult question is precisely what the defendant's lawyer must consent to before the state may permissibly communicate with the defendant. Our language in Miller could support an interpretation of Rule 4.2 requiring the state to obtain the lawyer's consent before communicating with the defendant outside the lawyer's presence. Under this interpretation, the state could interview a defendant who insists o

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