STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-1948

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                                  Michael Darron Ware,
                                       Appellant.

                                 Filed December 8, 2014
                                        Affirmed
                                      Hooten, Judge

                               Dakota County District Court
                                File No. 19HA-CR-13-575

Lori Swanson, Attorney General, St. Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Elizabeth M. Swank, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Hooten, Presiding Judge; Connolly, Judge; and

Johnson, Judge.

SYLLABUS

       In the absence of egregious state conduct or a violation of Minnesota Rule of

Professional Conduct 4.2, police, consistent with the Sixth Amendment, may interview a

represented defendant outside the presence of counsel so long as the defendant, after

being given his Miranda rights, provides a knowing, intelligent, and voluntary waiver of

his rights, including the right to have counsel present during the interview.

OPINION

HOOTEN, Judge

       A Dakota County jury found appellant Michael Darron Ware guilty of two counts

of felony domestic assault based on an altercation with his girlfriend. On appeal, Ware

argues that the district court committed reversible error by (1) failing to suppress his post-

arraignment custodial statement to police and (2) admitting evidence of his prior acts of

domestic abuse against a former girlfriend. We affirm.

                                          FACTS

       Ware and his girlfriend, K.T., lived together from October 2012 until February

2013. On the morning of February 14, 2013, K.T. and Ware got into an argument while

alone in their apartment. The argument became physical, and Ware “grabbed [her] hair

and just started moving [her] head around like a rag doll.” Ware also squeezed her face,

spit in her face, threw a chair at her, and kicked her. He then left, and K.T. went to her

mother’s apartment, which was in the same complex. K.T. did not call the police at that

time. Later that afternoon, K.T. returned to her apartment, and she and Ware continued

arguing. Ware again grabbed her hair, tried to force her head into a sink full of water,

and pushed her face into the floor. Ware eventually left, and K.T. called the police to

report the assaults.

       On February 15, the case was assigned to Investigator Justin Parranto of the Inver

Grove Heights Police Department. On February 19, the investigator requested that the

county attorney’s office file charges in a formal complaint. Subsequent to the incident,

Ware called the police department about ten times and left several messages on the


                                              2
investigator’s voicemail, stating that he wanted to discuss the case. On February 20,

Ware telephoned the investigator. During the conversation, Ware was “[v]ery manic

sounding, very excited, wouldn’t stop talking, [and] was adamant that he . . . needed to

[meet with the investigator] as soon as possible.” On February 21, Ware went to the

police station to meet with the investigator, but he was out that day. While at the police

station, Ware was arrested for the assault at the investigator’s direction.

       On February 22, the state filed a complaint in Dakota County District Court,

charging Ware with felony domestic assault in violation of 

, subds.

1(2), 4 (2012); terroristic threats in violation of 

, subd. 1 (2012);

and domestic assault by strangulation in violation of 

, subd. 2

(2012). The same day, Ware’s first-appearance hearing was held, and the district court

appointed him a public defender. The state later added a second count of felony domestic

assault.

       On February 25, the investigator spoke with K.T. on the telephone and took her

statement. During the telephone call, the investigator told K.T. that he thought Ware’s

next court date was in March, but he was referring to Ware’s supervised-release-violation

hearing on an unrelated case.

       On February 27, the investigator went to the jail where Ware was being held to

interview him. The investigator testified that he did not know Ware had already been

arraigned and appointed counsel for the assault case. He believed Ware was still being

held in jail on a supervised-release-revocation warrant, which was triggered by the new

felony domestic assault and terroristic threats charges. The investigator did not speak to


                                              3
the prosecutor assigned to this case or to anyone at the county attorney’s office before

interviewing Ware. When he arrived at the jail, Ware was “very adamant and excited to

get his side of the story out,” and the investigator had to ask Ware to wait to talk until he

had administered the Miranda warning. The investigator gave a full Miranda warning,

and Ware stated he wanted to talk. Ware did not indicate that he had an attorney or

wanted his attorney to be present.

       During the interview, Ware made a number of statements that were later used at

trial. Ware stated that K.T. “ruined his life” when she crashed his vehicle shortly before

the assault.   He was upset with her because “she completely ruined his mother’s

insurance,” and “she made him lose his job.” “He said that he was so mad at her that he

couldn’t even look at her.” Ware admitted that he and K.T. were in their apartment on

the morning of February 14. After looking at K.T.’s telephone that day, Ware noticed

“that she had been texting two male coworkers.” During the interview, Ware called K.T.

“a slut” and “stupid.”

       Toward the end of the interview, while Ware and the investigator were discussing

an unrelated case involving a car accident, Ware mentioned an “attorney” twice. The

investigator later testified that he believed these references to an attorney had to do with

the car-accident case. At the end of the interview, Ware offered to provide character

witnesses, and the investigator responded, “[T]hat would be between you and your

defense attorney.” The investigator testified that he was referring to a future defense

attorney Ware could retain for the assault case.




                                             4
       Ware moved to suppress his statement to the investigator, arguing that the

investigator improperly interviewed him without first contacting defense counsel, and

that the investigator should have known Ware was represented. At the suppression

hearing, the district court found that the prosecutor in this case had no involvement

whatsoever in the interview: “There’s nothing that even hints or smells of the prosecution

being involved to any extent . . . in this interrogation . . . .” The district court found it

was “questionable whether [the investigator] knew [Ware] was represented.” The district

court thus distinguished this case from other cases where the officer knew the defendant

was represented, or where the prosecutor gave police permission to interview a

represented defendant. The district court noted that Ware initially reached out to the

investigator to tell his side of the story, had prior experience with the criminal justice

system, and validly waived his right to counsel. The district court concluded that the

state’s conduct was not egregious and denied Ware’s motion to suppress.

       At the jury trial, the investigator testified as to Ware’s February 27 statement.

Also, over Ware’s objection, the district court admitted evidence of Ware’s prior acts of

domestic abuse against a former girlfriend, K.C.          The district court found that the

probative value of K.C.’s testimony was not substantially outweighed by the danger of

unfair prejudice because relationship evidence “sheds light on how the [d]efendant

interacts with those close to him.” Before K.C. testified, the district court gave the jury a

limiting instruction on how it could use this evidence.

       K.C. testified that she and Ware have two children in common. She testified that,

in August 2004, she and Ware got into an argument while she was driving him to work.


                                             5
He “was upset with [her] and bashed [her] head against the window a few times,” causing

bruising on the side of her face. K.C. also testified that, in March 2009, Ware was upset

with her because she was on the telephone when he arrived at her house. Ware “tried to

wrestle [the telephone] away” from K.C. and in the process “pinned [her] on the couch.”

      The jury found Ware guilty of the two counts of felony domestic assault and not

guilty of the other charges. In July 2013, the district court sentenced Ware to 30 months

on one conviction and 36 months on the other conviction, to be served concurrently. This

appeal followed.

                                        ISSUES

       I.    Did the district court err by denying Ware’s motion to suppress his post-
arraignment custodial statement to police?

       II.     Did the district court abuse its discretion by admitting evidence of Ware’s
prior acts of domestic abuse against a former girlfriend?

                                      ANALYSIS

                                            I.

      Ware argues that the district court erred by failing to suppress the post-

arraignment custodial statement he made to the investigator because the investigator

failed to notify defense counsel or obtain defense counsel’s consent to the interview.

“When reviewing a district court’s pretrial order on a motion to suppress evidence, ‘we

review the district court’s factual findings under a clearly erroneous standard and the

district court’s legal determinations de novo.’” State v. Ortega, 

(Minn. 2009) (quoting State v. Jordan, 

 (Minn. 2007)). Ware

contends that the interview was improper and his statement should have been suppressed


                                            6
because the state violated his Sixth Amendment right to counsel and rule 4.2 of the

Minnesota Rules of Professional Conduct. While Ware does not clearly differentiate

between these two grounds for suppression, we analyze them separately because “a Sixth

Amendment claim is analytically distinct from a [r]ule 4.2 claim and . . . each is governed

by a different body of law.” See State v. Clark, 

 (Minn. 2007).

                                            A.

       “In 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 . . . is subject to adverse judicial proceedings, including

arraignments.”   Clark, 

.       “[T]he Sixth Amendment guarantees a

defendant the right to have counsel present at all ‘critical’ stages of the criminal

proceedings,” including custodial police interviews. Montejo v. Louisiana, 

, 

 (2009) (citations omitted). A defendant may waive his Sixth

Amendment right to counsel as long as the waiver is knowing, intelligent, and voluntary.

 (citing Patterson v. Illinois, 

, 292 n.4, 

, 2394 n.4 (1988)).

“The defendant may waive the right whether or not he is already represented by counsel;

the decision to waive need not itself be counseled.” 

 (emphasis added). The state

bears the burden of proving that a defendant’s waiver is valid, and “[i]n deciding whether

the government has met its burden, courts consider the circumstances of each case,

including the age, experience, and background of the defendant.” Clark, 

.




                                             7
      In Montejo, the United States Supreme Court concluded that for purposes of

“determining whether a Sixth Amendment waiver was knowing and voluntary, there is no

reason categorically to distinguish an unrepresented defendant from a represented one.”

556 U.S. at 797–98, 129 S. Ct. at 2091–92. The Court found that a defendant in contact

with police after arraignment is already protected from police “badgering” by “three

layers of prophylaxis” provided in other Supreme Court precedent: (1) the right to have a

lawyer present and to be advised of that right, Miranda v. Arizona, 

, 

 (1966); (2) the requirement that interrogation must cease once the

defendant invokes his or her right to counsel, Edwards v. Arizona, 

, 

, 1884–85 (1981); and (3) the requirement that no subsequent interrogation

can take place until counsel is present, regardless of whether the defendant has consulted

with his or her lawyer, Minnick v. Mississippi, 

, 

(1990). Montejo, 

, 129 S. Ct. at 2089–90. Essentially, a knowing,

intelligent, and voluntary waiver of Miranda rights “does the trick” for defendants that

wish to speak with police after arraignment and retention of counsel, and “a defendant

who does not want to speak to the police without counsel present need only say as much

when he is first approached and given the Miranda warnings” in order to trigger the

protections of Miranda, Edwards, and Minnick. 

, 

.

      Our supreme court precedent is consistent with Montejo. In State v. Buckingham,

the Minnesota Supreme Court restated and clarified this state’s established legal

principles regarding police post-arraignment contact with an accused who is represented

by counsel: “Police may speak with a defendant, even after appointment of counsel, so


                                            8
long as the defendant does not clearly assert a desire to deal with the police only through

counsel.” 

 (Minn. 2009) (citing State v. Mattson, 

 (Minn. 1984)).

       At the time of the February 27 interview, Ware was represented by counsel.

However, he did not “clearly assert a desire to [speak to the investigator] only through

counsel.”   

   The investigator read Ware the full Miranda warning, and Ware

unambiguously waived his right to have counsel present during the interview. “[W]hen a

defendant is read his Miranda rights” in a post-arraignment interview “and agrees to

waive those rights, that typically” constitutes a valid waiver for Sixth Amendment

purposes. Montejo, 

, 

. Both in his brief and at oral

argument, Ware did not dispute the validity of his waiver of the right to counsel. Given

Ware’s valid Miranda waiver and his prior experience with the criminal justice system,

we conclude that Ware’s Sixth Amendment right to counsel was not violated.

                                            B.

       Minnesota Rule of Professional Conduct 4.2 states: “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 . . . .” Pursuant to rule 4.2, “a prosecutor cannot interview [a

represented] defendant without opposing counsel’s presence or consent.” Buckingham,

 (citing Clark, 

). If a prosecutor interviews a

represented defendant in violation of rule 4.2, however, suppression of the defendant’s

statement does not automatically follow. 

 “Instead, where prosecutor violations of


                                             9
rule 4.2 occur, we take ‘a case-by-case approach to determining whether the state’s

conduct is so egregious as to compromise the fair administration of justice.’” 

 (quoting

Clark, 

). It is undisputed in this case that the prosecutor had no

contact with Ware without defense counsel’s presence or consent, and therefore the

prosecutor did not violate rule 4.2.

       Police contact with a represented defendant, however, “may be attributed to a

prosecutor where the prosecutor orders or ratifies the contact.” 

 (citing Clark, 738

N.W.2d at 337–38); see Minn. R. Prof. Conduct 5.3(c)(1) (“[A] lawyer shall be

responsible for the conduct of a nonlawyer that would be a violation of the Rules of

Professional Conduct if engaged in by a lawyer if . . . the lawyer orders or, with the

knowledge of the specific conduct, ratifies the conduct involved . . . .”). In State v.

Miller, the supreme court held that the prosecutor ratified police officers’ contact with a

represented defendant by instructing police to continue conducting a non-custodial

interview and advising them that they should prevent the defense counsel from

communicating with the defendant during the interview. 

(Minn. 1999). Unlike in Miller, the investigator here did not speak to anyone at the

county attorney’s office about Ware’s interview before or during the interview. The

prosecutor had no knowledge of the interview until it was concluded and thus did not

“orde[r] or ratif[y] the [police] contact.” See Buckingham, 

. Because

the investigator’s interview with Ware cannot be attributed to the prosecutor, there was

no rule 4.2 violation.




                                            10
      Ware contends that the investigator’s interview was improper under State v.

Lefthand, 

, 801–02 (Minn. 1992). Lefthand was the first case to analyze

whether evidence should be suppressed as the result of a rule 4.2 violation. Lefthand

involved highly egregious state conduct, where police interviewed a defendant who was

awaiting a rule 20 evaluation, outside the presence of defense counsel and with

permission of the prosecutor. 

. The supreme court held that the defendant’s

statement should have been suppressed, and reversed and remanded for a new trial. 

. The supreme court broadly stated 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. Statements obtained without notice to or the presence

of counsel are subject to exclusion at trial.” 

 at 801–02 (footnote omitted). The

Lefthand court drew on Minnesota case law that discouraged the practice of post-

arraignment custodial police interviews of defendants outside the presence of counsel.

E.g., State v. Renfrew, 

, 

 (1968) (“Even where a

defendant voluntarily and intelligently waives his constitutional rights, we strongly

disapprove of in-custody interrogations if defendant is represented by counsel and

counsel has not had an opportunity to be present at the questioning.”). The present case

is distinguishable from Lefthand because, as discussed below, the state’s conduct here

was not egregious.

      Over the next 17 years, the supreme court narrowed the rule it articulated in

Lefthand. Three years after that case, in State v. Ford, the court clarified that “our

decision in Lefthand did not create an automatic exclusionary rule for a violation of” rule


                                            11
4.2 by a prosecutor. 

 (Minn. 1995). Rather, suppression of a

defendant’s statement is appropriate only if the state’s conduct is sufficiently egregious.

 at 224–25.    In Ford, after the defendant was arrested, arraigned, and appointed

counsel, he reached out to police to speak about his case, and police subsequently

interviewed him without notifying the prosecutor or defense counsel. 

. The

supreme court did not find this conduct sufficiently egregious to warrant suppression of

the defendant’s statements. 

 at 224–25. Four years later, in Miller, the supreme court

found that the state’s conduct was egregious enough to warrant suppression. 

. In that case, police refused to terminate an interview after being asked to do so by

defense counsel, and the prosecutor told defense counsel he would not be allowed to join

the interview or talk to the defendant. 

.

       In two recent cases, the supreme court further clarified Lefthand. In Clark, the

court suggested that the egregiousness of the state’s conduct should be analyzed only if

there was a rule 4.2 violation. See 

. And, in Buckingham, the court

declared, “Police may speak with a defendant, even after appointment of counsel, so long

as the defendant does not clearly assert a desire to deal with the police only through

counsel.” 

 (emphasis added). While the court in Buckingham cites to

Ford and Clark, it does not cite to Lefthand. 

       As analyzed above, there was no rule 4.2 violation in this case. Ostensibly, if

there is no rule 4.2 violation, an inquiry into the egregiousness of the state’s conduct is

unnecessary, and there are no grounds for suppression. See 

 (“[W]here prosecutor

violations of [r]ule 4.2 occur, we take a case-by-case approach to determining whether


                                             12
the state’s conduct is so egregious as to compromise the fair administration of justice.”

(emphasis added)). But, in Buckingham, the supreme court “assum[ed] without deciding

that law enforcement owes a duty similar to prosecutors” and subsequently analyzed

whether the state’s conduct was sufficiently egregious to warrant suppression, even

though there was no rule 4.2 violation in that case. See 

 Accordingly, we now inquire

into the egregiousness of the state’s conduct in this case.

       According to Ware, the state’s conduct was egregious because too much time had

elapsed between when Ware reached out to the investigator and when the interview took

place; the investigator should have known Ware was represented by counsel before the

interview began; and toward the end of the interview, Ware mentioned an attorney twice,

and the investigator referred to Ware’s “defense attorney.” This set of circumstances is

clearly distinguishable from the egregious conduct at issue in Lefthand and Miller.

       In denying Ware’s motion to suppress, the district court found that the prosecutor

had no involvement in setting up the interview and had no contemporaneous knowledge

of the interview. The district court found that Ware had prior experience with the

criminal justice system and was very eager to tell his side of the story. The district court

further found that Ware validly waived his Miranda rights. The district court found that

it was “questionable whether [the investigator] knew [Ware] was represented.” We defer

to the district court’s credibility determinations and conclude that the district court’s

findings are not clearly erroneous. State v. Miller, 

 (Minn. App.

2003). The state’s conduct in this case was not egregious. It did not evince “improper

tactics” or “a pattern of conduct . . . calculated to subvert the intent of our criminal rules.”


                                              13
Lefthand, 

 (quotation omitted). This case is more analogous to Ford,

where the defendant reached out to police after his arrest, and police interviewed him

without notifying the prosecutor. 

.

      Ware contends that his case is similar to Finne v. State, where this court held that

the defendant’s post-arraignment custodial statement should have been suppressed under

Lefthand, Ford, and Miller. 

 (Minn. App. 2002), review denied

(Minn. Oct. 29, 2002). But, Finne is factually distinguishable from this case. In Finne, a

law-enforcement officer initially questioned the defendant following her arrest, but the

defendant invoked her right to counsel, and the officer immediately ceased questioning.

. The defendant was appointed a public defender, and six days later the

defendant contacted the same officer to speak about the case. 

 The officer knew that

the defendant had been arraigned.       

.    That officer and another officer

interviewed the defendant outside the presence of counsel, and at the beginning of the

interview, the defendant mentioned her attorney twice. 

, 737–38. The officers

did not clarify whether she was represented in the current matter or whether she was

referring to representation in another matter. 

. During the interview, the

defendant offered information in exchange for leniency. 

. Unlike in Finne,

Ware did not invoke his right to an attorney during prior questioning, it was questionable

whether the investigator knew Ware had been arraigned or was represented, and the

investigator did not offer Ware leniency. Also, Ware’s brief references to an attorney

came at the end of the interview and were apparently made in reference to another case.




                                           14
       Under these circumstances, where the state’s conduct was not egregious, there was

no violation of Ware’s Sixth Amendment right to counsel or rule 4.2. Accordingly, the

district court did not err by denying Ware’s motion to suppress the statement he made to

the investigator.

                                            II.

       Ware next argues that the district court abused its discretion by admitting evidence

of his prior acts of domestic abuse against a former girlfriend, K.C., pursuant to

Minnesota Statutes section 634.20 (2012). “Evidentiary rulings rest within the discretion

of the trial court and will not be reversed absent a clear abuse of discretion.” State v.

Bell, 

 (Minn. 2006).

       “Evidence of similar conduct by the accused against the victim of domestic abuse,

or against other family or household members, is admissible unless the probative value is

substantially outweighed by the danger of unfair prejudice . . . .” 

.

Such evidence is commonly referred to as “relationship evidence.” State v. Matthews,

 (Minn. 2010). “Similar conduct” includes domestic abuse. 

. “Domestic abuse” includes “physical harm, bodily injury, or assault”

committed against “a family or household member by a family or household member.”

Minn. Stat. § 518B.01, subd. 2(a)(1) (2012).      “Family or household members” include

“persons who have a child in common.” Id. subd. 2(b)(5).

       In 2004, the Minnesota Supreme Court expressly adopted section 634.20 “as a rule

of evidence for the admission of evidence of similar conduct by the accused against the

alleged victim of domestic abuse.” State v. McCoy, 

 (Minn. 2004).


                                            15
Six years later, this court held that “section 634.20 authorizes the admission of evidence

of domestic abuse against [an accused’s] family or household members.”            State v.

Valentine, 

 (Minn. App. 2010), review denied (Minn. Nov. 16,

2010) (admitting evidence of domestic abuse by defendant against his other girlfriend).1

      Because Ware and K.C. have children in common, K.C. is a “family or household

membe[r]” within the meaning of the statute. Minn. Stat. § 518B.01, subd. 2(b)(5). K.C.

testified about “similar conduct” under the statute because she testified that Ware

physically harmed her on two occasions.         Id. subd. 2(a)(1); 

.

Accordingly, the district court properly admitted relationship evidence under section

634.20 unless its “probative value is substantially outweighed by the danger of unfair

prejudice.” 

.

      “When balancing the probative value against the potential prejudice, unfair

prejudice is not merely damaging evidence, even severely damaging evidence; rather,

unfair prejudice is evidence that persuades by illegitimate means, giving one party an

unfair advantage.” Bell, 

 (quotation omitted). A district court’s

limiting instruction “lessen[s] the probability of undue weight being given by the jury to




1
  Ware argues that the district court erred by admitting K.C.’s testimony because the
Minnesota Supreme Court has not adopted section 634.20 as to relationship evidence
involving a family or household member, essentially asking this court to overrule its
decision in Valentine. We decline Ware’s invitation and are bound by Valentine. See
Doe v. Lutheran High Sch. of Greater Minneapolis, 

 (Minn. App.
2005), review denied (Minn. Oct. 26, 2005) (“[A]ppellate courts are bound by the
doctrine of stare decisis, which directs that we adhere to former decisions in order that
there might be stability in the law.” (quotation omitted)).

                                           16
the evidence.” State v. Lindsey, 

 (Minn. App. 2008), review denied

(Minn. Oct. 29, 2008) (quotation omitted).

       This court has observed that the probative value of relationship evidence involving

a family or household member is high because “evidence showing how a defendant treats

his family or household members, such as his former spouses or other girlfriends, sheds

light on how the defendant interacts with those close to him, which in turn suggests how

the defendant may interact with the victim.” Valentine, 

. At the same

time, the danger of unfair prejudice in this case is low because the district court gave the

jury a cautionary instruction. Lindsey, 

. Accordingly, the probative

value of Ware’s prior acts of domestic abuse against K.C. is not substantially outweighed

by the danger of unfair prejudice.

       We conclude that the district court did not abuse its discretion by admitting

evidence of Ware’s prior acts of domestic abuse against K.C. pursuant to Minnesota

Statutes section 634.20.

                                     DECISION

       The district court did not err by denying Ware’s motion to suppress the statement

he made to the investigator and did not abuse its discretion by admitting relationship

evidence.

       Affirmed.




                                             17