806 N.W.2d 535 (Minn. 2011), A09-0243, State v. Borg

Docket Nº:A09-0243.
Citation:806 N.W.2d 535
Opinion Judge:ANDERSON, G. BARRY, Justice.
Party Name:STATE of Minnesota, Appellant, v. Brett David BORG, Respondent.
Attorney:Lori Swanson, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, St. Paul, MN; and Jan Jude, Mille Lacs County Attorney, Milaca, MN, for appellant. David W. Merchant, Chief Appellate Public Defender, Jodie L. Carlson, Assistant State Public Defender, St. Paul, MN, for respondent.
Judge Panel:MEYER, Justice (dissenting). PAGE, Justice (dissenting). I join in the dissent of Justice Helen Meyer. ANDERSON, PAUL H. (dissenting). I join in part II of the dissent of Justice Helen Meyer. ANDERSON, PAUL H., Justice (dissenting).
Case Date:September 21, 2011
Court:Supreme Court of Minnesota
 
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Page 535

806 N.W.2d 535 (Minn. 2011)

STATE of Minnesota, Appellant,

v.

Brett David BORG, Respondent.

No. A09-0243.

Supreme Court of Minnesota.

September 21, 2011

As Amended on Denial of Rehearing Nov. 14, 2011.

Page 536

[Copyrighted Material Omitted]

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Syllabus by the Court

1. The Fifth Amendment to the United States Constitution, as applied to Minnesota by the Fourteenth Amendment, prevents the State from compelling a criminal defendant to testify at the defendant's own trial and prohibits the State from commenting on the defendant's decision to not testify.

2. When the State does not compel a person who is not in custody to speak or to remain silent, then the voluntary decision of the person to speak or remain silent does not implicate the Fifth Amendment privilege against self-incrimination.

3. A letter mailed to a person who is not in custody by the police in order to arrange an interview through counsel does not compel the person to speak or remain silent.

4. The Fifth Amendment does not prohibit the State from presenting evidence during its case in chief of a defendant's lack of response to a letter mailed by the police in order to arrange an interview through counsel with the defendant.

Lori Swanson, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, St. Paul, MN; and Jan Jude, Mille Lacs County Attorney, Milaca, MN, for appellant.

David W. Merchant, Chief Appellate Public Defender, Jodie L. Carlson, Assistant State Public Defender, St. Paul, MN, for respondent.

OPINION

ANDERSON, G. BARRY, Justice.

A Mille Lacs County jury found Brett David Borg guilty of third-degree criminal sexual conduct, Minn.Stat. § 609.344, subd. 1(d) (2002). The district court allowed a police officer to testify in the State's case in chief that Borg did not respond to a mailed request for an interview by the officer. The court of appeals reversed Borg's conviction, concluding that the district court erred when it allowed the officer to testify about " silence in response to police questions or attempts to pose questions." State v. Borg, 780 N.W.2d 8, 16 (Minn.App.2010). The State petitioned for review. Because the Fifth Amendment to the United States Constitution does not prohibit the State from introducing evidence during the State's case in chief regarding a defendant's silence unless the government compelled the defendant to speak or to remain silent, we reverse the court of appeals and remand for consideration of Borg's remaining arguments.1

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Respondent Brett David Borg spent the evening of May 6, 2004, at Grand Casino in Mille Lacs with a group of young adults celebrating a friend's 18th birthday. The members of the group gambled at the casino, drank alcohol in a hotel room, and went to a nearby resort to swim at the pool. More alcohol was consumed while at the pool and the group eventually returned to the hotel around 2 a.m. on May 7. Three women, including M.W., had planned to stay together in one hotel room. Borg and another man joined the three women in the room. Borg had sexual intercourse with M.W. during the night, and M.W. reported the incident to the police at a hospital on May 7. After investigation by the police, the State charged Borg on November 24, 2004, with third-degree criminal sexual conduct, Minn.Stat. § 609.344, subd. 1(d) (2002), alleging that he engaged in sexual penetration involving a person who was mentally impaired, mentally incapacitated, or physically helpless.

Borg's trial began in September 2008. At trial, M.W. testified that she drank four or five beers and some sips of an alcoholic drink over the course of the evening and was extraordinarily tired. After she returned to the hotel from the pool, M.W. changed into her pajamas and was the first person to lie down in one of the two beds. M.W. testified that she quickly fell asleep but slipped in and out of sleep. She was aware that Borg got into her bed with her. At one point during the night, M.W. " felt a hand over my stomach and I was so tired I wanted to move it but I couldn't.... My body was so tired and I just fell back asleep." M.W. woke the next morning and realized that her pajama pants and underwear were removed from one leg. One of the other women told her that Borg had sexual intercourse with her during the night. M.W. denied having intercourse and stated she was menstruating. M.W. then realized that her tampon had been removed, and one of the women found M.W.'s tampon on the floor. M.W. called a rape crisis center and was advised to go to a hospital. M.W. brought to the hospital an ice bucket into which she had vomited because she wondered if she had been drugged.

M.W. testified that she had met Borg previously and considered him an acquaintance. M.W. testified that she was not interested in Borg, did not flirt with him, did not kiss him, and did not consent to intercourse with him. When cross-examined, M.W. attributed her inability to remember the intercourse to her tiredness and to intoxication.

Borg testified in his defense. According to Borg, he kissed M.W. while the group was at the pool and thought that M.W. was interested in him. Borg testified that M.W. entered the bed after he did and put her head on his arm. Borg testified that he gave M.W. a " provocative" back massage to which she physically responded and verbally consented. Borg testified that M.W. kissed him while he was in bed with her, and claimed that both pulled down their own pants before intercourse. Borg denied knowing that M.W. was menstruating, and testified that he did not remove her tampon.

Testimony of other members of the group differed as to how Borg and M.W. interacted when the group was at the pool. The two women who were in the hotel room when Borg had intercourse with M.W. each testified to seeing Borg move his hands over M.W. under the bed covers. One of the women, K.K., testified that M.W. was laying on her side with her eyes closed and was not moving, but K.K. did not interrupt because she did not know

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whether the activity was consensual. The other woman, D.C., testified that she saw Borg and M.W. having sex. D.C. did not interrupt, nor did she think that M.W. was " asleep through all of it."

Borg woke the next morning when D.C. hit him in the face. Borg testified that he was " shocked" and didn't understand what was going on, asked D.C. why she had hit him, and then left the room after the women continued to yell at him. Borg testified that he did not remember whether he said that the sex was consensual when confronted in the hotel room. Other witnesses testified that they did not remember Borg saying anything in response to the blow. Borg denied drugging M.W., and tests found no evidence of date-rape drugs.

Borg's silence

When the State charged Borg, it filed with the complaint a copy of the Minn. R.Crim. P. 7.01 notice given to Borg that the State possessed " [c]onfessions, admissions, or statements in the nature of confessions made by the defendant." Counsel for Borg moved to dismiss the complaint for lack of probable cause, and the district court held a contested omnibus hearing on November 16, 2005. At the omnibus hearing, the State filed witness statements, police reports, and other documents to support probable cause, including a copy of a letter addressed to Borg from Mille Lacs Tribal Police Department Sergeant Scott W. Niemeyer. In the letter, dated July 21, 2004, Niemeyer told Borg:

I would like to speak with you regarding an investigation that I am conducting. When I spoke with you briefly in May, 2004, you indicated that you had hired an attorney to represent you.

Please have your attorney contact me as soon as possible to arrange an interview appointment. Thank you very much.

The copy of the letter that was filed in the district court is stamped " Copy to Defendant," but the date on which a copy was provided to Borg is not legible on the document in the court file. One of the police reports filed by the State at the omnibus hearing is a supplemental report prepared by Niemeyer. The supplemental report bears the same " Copy to Defendant" stamp as the letter from Niemeyer to Borg, but the date of the stamp on the report is legible: December 21, 2004. The supplemental report is consistent with the letter and indicates that Niemeyer called Borg on May 18, 2004, and, during the conversation, Borg told Niemeyer " that he had spoken with an attorney from Little Falls, MN, and he would not speak with [Niemeyer]."

Counsel for Borg filed a memorandum in support of his motion to dismiss for lack of probable cause on December 9, 2005, about three weeks after the letter from Niemeyer to Borg and Niemeyer's supplemental report were filed in court. In the memorandum, counsel for Borg did not mention or challenge the letter from Niemeyer to Borg and did not mention or challenge Niemeyer's supplemental police report. Defense counsel also made no argument in the memorandum based on the contact between Niemeyer and Borg. The district court denied the motion to dismiss by order filed February 7, 2006.

Shortly before Borg's 2008 trial, Borg moved the district court to preclude Niemeyer from testifying about Niemeyer's attempts to contact Borg by letter and by telephone, arguing that the Fifth Amendment provided Borg the right to remain silent. In response to the motion, the State told the court that Borg " was contacted via mail initially and then he was contacted via telephone by the investigator and asked if he would be willing to provide a statement and the defendant indicated

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that no, he would not." The sequence of events presented by the State— that Borg was " contacted via mail initially and then he was contacted via telephone" —...

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