State v. Ortega, No. A10–0765.

• Decision Date: 18 April 2012
• Docket Number: No. A10–0765.
• Citation: 813 N.W.2d 86
• Parties: STATE of Minnesota, Respondent, v. Danny ORTEGA, Sr., Appellant.
• Court: Minnesota Supreme Court

813 N.W.2d 86

STATE of Minnesota, Respondent,

v.Danny ORTEGA, Sr., Appellant.

No. A10–0765.

Supreme Court of Minnesota.

April 18, 2012.

Syllabus by the Court

1. The district court did not err when it admitted appellant's statements to investigators because, after initially requesting counsel, appellant reinitiated questioning with the investigators and then validly waived his Miranda rights.

2. The district court did not err when it admitted appellant's statements to investigators because, after appellant made an equivocal request for counsel, investigators complied with the “stop and clarify” rule by asking appellant a narrow question designed to clarify the scope of appellant's request for counsel.

3. Any alleged error in the prosecutor's questioning of jurors during voir dire did not result in prejudice to the appellant.

4. Appellant's pro se arguments are without merit.

Lori Swanson, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, St. Paul, MN; and Paul Kiltinen, Dodge County Attorney, Mantorville, MN, for respondent.

David W. Merchant, Chief Appellate Public Defender, Melissa Sheridan, Assistant State Public Defender, Eagan, MN, for appellant.

OPINION

STRAS, Justice.

Following a jury trial, appellant Danny Ortega, Sr. (“Ortega”) was convicted of aiding and abetting first-degree premeditated murder, Minn.Stat. §§ 609.185(a)(1), 609.05, subd. 1 (2010), in the stabbing death of Troy Ulrich. Ortega challenges his conviction on appeal, arguing that (1) the district court erred in denying his motion to suppress his statements to investigators, and (2) the district court abused its discretion when it allowed the prosecutor to ask prospective jurors whether they believed there was anything more valuable than human life. Ortega also filed a pro se supplemental brief alleging numerous errors, including a claim that the evidence was insufficient to convict him of premeditated murder. We affirm Ortega's conviction.

I.

Troy Ulrich was stabbed to death in a garage at his apartment building in Claremont, Minnesota, on February 16, 2008. Ulrich lived in Apartment C with his fiancée. Ortega occasionally stayed across the hall in Apartment A, where Ortega's father, Severo Ortega, and Ortega's son, Danny Ortega, Jr. (“Junior”), resided. Ortega's brother-in-law, Arnulfo Bermea, Sr., also lived in the apartment building with his sons, Anthony and Eric Bermea. Arnulfo rented the garage where Ulrich was stabbed.

At trial, the State presented the following facts. On the afternoon of February 15, 2008, Ortega left Apartment A to go to a bar in Owatonna. Junior's girlfriend, Marissa Lane, was staying at Apartment A at the time and testified that she saw Ortega put a folding knife with a black handle in his pocket before he left.

After Ortega left, a group of people—including Junior, Lane, and Eric and Anthony Bermea—gathered in Apartment A to play cards and drink beer. When the group ran out of beer, Junior walked across the hall to Apartment C and asked Ulrich to join them. Shortly thereafter, Ulrich arrived at Apartment A with beer that he shared with the others. Several members of the group, including Junior, Ulrich, and Eric Bermea, snorted cocaine that evening.

Later that night, Ulrich told Eric and Anthony that Junior had warned Ulrich not to trust the Bermea brothers because they “were bad people to be hanging around.” Angry at the accusation, the Bermeas confronted Junior. Junior denied making the comment and called Ulrich a liar, which led to an argument between Junior and Ulrich. To avoid a physical altercation, Eric, Anthony, and Ulrich left Apartment A and decided to continue drinking in the garage rented by Arnulfo. As they were leaving, the Bermeas heard Junior call Ortega and complain that “somebody was fucken [sic] with him and trying to fight him.” According to Anthony Bermea, Junior then asked Ortega to come over to Apartment A “and do something.”

Lane testified that Ortega was drunk when he arrived at Apartment A later that evening. Ortega and Junior spoke in Spanish, which Lane could not understand. Before leaving Apartment A, the Ortegas told Lane they were heading to the garage to confront Ulrich.

Upon reaching the garage, Ortega approached Ulrich and asked, “[w]hat the fuck you got with my son?” Ulrich responded that he did not have a problem with Junior. Eric testified that Ortega shoved Ulrich with both hands. Ulrich then pushed Ortega, who punched Ulrich in response. Ulrich picked up a light stand and hit Ortega with sufficient force to cause Ortega to bleed and fall to the ground. Shortly thereafter, Junior began striking Ulrich with a bolt cutter. Ortega then stood up, took the bolt cutter from Junior, and struck Ulrich with it.

Throughout the fight, Ulrich continued to back away from the Ortegas until they trapped him in a corner of the garage. Anthony testified that Ulrich slumped against a wall and pleaded with the Ortegas to stop. The Bermeas next heard Ulrich yell, “[h]e's got a knife.” Neither brother saw a knife, but Anthony saw Ortega make stabbing motions as Ulrich said, “[s]top, stop with the knife.... Stop stabbing me.” Ulrich then fell to the ground out of the brothers' line of sight, but the brothers observed both of the Ortegas make stabbing motions and continue to beat Ulrich. At that point, the Bermeas left the garage.

The Bermeas returned to Arnulfo's apartment. At some point, Anthony went to Apartment A to tell the Ortegas that he wanted to call the police, but Ortega told Anthony, “[d]on't call the fucken [sic] cops.” Anthony thereafter told Junior to move Ulrich's body. When Junior asked Anthony for help in moving the body, Anthony refused. The Bermeas decided not to call the police because Eric was worried that he would get in trouble for using cocaine earlier that evening.

Meanwhile, the Ortegas and Lane attempted to clean the scene and destroy incriminating evidence. After the altercation with Ulrich, Ortega and Junior had returned to Apartment A covered in blood; in fact, Lane testified that, at first, she could not even recognize Ortega. The Ortegas washed off the blood, and Lane used peroxide to clean a large cut on Ortega's head. Ortega put the bloody clothes into a plastic grocery bag, and then Junior told Lane to throw the bag in a trash dumpster located outside the apartment building. Ortega also cleaned the black folding knife with bleach before giving it to a friend to hide from the police. Junior and Lane returned to the garage and dragged Ulrich's body into the apartment hallway where numerous residents discovered the body the next morning. Upon hearing police sirens, Junior and Lane left and went to Lane's home in Austin, Minnesota, where Junior planned to catch a bus to Florida to stay with his mother.

Evidence recovered by police officers and forensic scientists from the Bureau of Criminal Apprehension (BCA) largely corroborated the Bermeas' testimony about the location and progression of the fight in the garage. Investigators found Ortega's tooth and a light stand with blood on it near the location where the Bermeas said the fight began. Bloodstains demonstrated that the fight moved from one end of a parked car to the other before proceeding to a corner of the garage. A pool of Ulrich's blood and hair found on the wall and floor of the garage confirmed that Ulrich fell to the ground and died in that corner.

The medical examiner, Dr. Michael McGee, testified that Ulrich suffered eight stab wounds and one puncture wound, causing Ulrich to bleed to death. Eight of the wounds were to Ulrich's chest or midsection, and one of the wounds was so deep that it broke through Ulrich's left rib, piercing Ulrich's lung and heart. Dr. McGee testified that the stab wounds were consistent with a knife that police recovered from Ortega's friend. Dr. McGee's autopsy also revealed that Ulrich was struck in the facial region six or seven times, suffered at least five blows to the head, and had defensive injuries on his body. Dr. McGee testified that there were no bruises on Ulrich's hand “that would indicate that he threw any punch.”

The morning that investigators discovered Ulrich's body, the police arrested Ortega and took him to Claremont City Hall for questioning. According to the evidence presented at a contested omnibus hearing, BCA Agents Michael Wold and Dave Giguere initiated an interview with Ortega. However, after Ortega was informed he was under arrest and before Agent Wold could read a Miranda warning to Ortega, Ortega stated, “[w]ell then I'm not gonna say nothin' I just want to have an attorney present if you're gonna question me.” Upon Ortega's invocation of his right to counsel, Wold and Giguere terminated the interview.

At the omnibus hearing, Dodge County Investigator Jeremy Gunderson testified that he conducted a second interview with Ortega later that day, but the events leading up to that interview are disputed. Gunderson said that he was interviewing one of the Bermea brothers elsewhere in the building, but was aware that BCA agents were interviewing Ortega. Upon learning that Ortega had invoked counsel, Gunderson stated that he began arranging for Ortega's transportation to the county jail. In making those arrangements, Gunderson went to the room in which Ortega was being held in order to speak with Deputy Dean Valere about a transport car. Gunderson testified that when he entered the room, Ortega said “hi” and Gunderson “said hi back.” Gunderson further testified:

He took his hat off and showed me this wound on his head and said that they had ... he had been struck or assaulted, and I told him that I could not get into the case because I ... he ... I was informed that he had requested counsel. So I could not talk to him about his case unless that he had requested to speak with me.

Valere testified that Gunderson was the first to say hello: “[Gunderson] and Danny [started] saying, ‘Hey, how's it going, Danny.’ And then [Ort...