Petition — Minnesota v. Murphy

2-927 [™NTee |

NOV 12 1982

No. 82— ——

| = : all

IN THE

Supreme Court of the Gnited States

October Term, 1982

STATE OF MINNESOTA,

Petitioner,

vs.

MARSHALL DONALD MURPHY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE MINNESOTA SUPREME COURT

Thomas L. Johnson

Hennepin County Attorney

Vernon E. Bergstrom

Chief, Appellate Division

Hennepin County Attorney’s Office

Robert H. Lynn

Assistant Hennepin County Attorney

Salomé Zusman

Staff Attorney

Hennepin County Attorney’s Office

2100-C Government Center

Minneapolis, Minnesota 55487

Attorneys for Petitioner

1982—Northwest Brief Printing Co., 3010 2nd St. No., Minneapolis 554) 1—588-7506

Does the Fifth Amendment to the United States Consti-

tution require, in the absence of a Miranda-type warning,

suppression of a probationer’s noncustodial but incrimin-

ating admissions to his probation officer where the proba-

tioner is required by the conditions of his probation to

meet with his probation officer as directed and to be truth-

ful with her and the probation officer suspects that the

probationer was involved in prior criminal activity?

TABLE OF CONTENTS

Page

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Pe cen cocensdenseaqenetesenuaeen 1

Statement of Jurisdictional Grounds .............. l

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Reasons for Granting the Writ:

I. The Minnesota Supreme Court Has Decided An

Important Question Of Federal Constitutional

Law In A Way Which Conflicts With Applicable

Decisions Of This Court And Has Thereby Ex-

tended The Meaning Of “Custodial Interroga-

tion” And “Compelled Self-Incrimination” Be-

yond The Scope Of The Fifth Amendment. .... 8

II. The Minnesota Supreme Court Has Decided An

Important Question Of Federal Constitutional

Law Which Has Not Been, But Needs To Be, De-

cided By This Court To Resolve The Apparent

Conflict Between The Decision Of The Minnesota

Supreme Court And The Decisions Of Other State

And Federal Appellate Courts. .............. 14

SD bc bwddacavasebacndedscancensesesa« 15

APPENDIX INDEX

Appendix A: Opinion and Judgment of the Minnesota

SND on dcincsetetenan acen dees eoneens A-1

Appendix B: Memorandum and Order of the Henne-

pin County District Court ........ ccs secccess B-1

Appendix C: Partial Transcript of Omnibus Hearing

SEED onan encnnsdesacecuceseeces cece C-1

Appendix D: Partial Transcript of Motion to Dismiss

Proceedings and Order Dismissing Proceedings ... .D-1

TABLE OF AUTHORITIES

Cases:

Alspach v. State, — Ind. App. —, — N.E.2d — (Oct.

Line eee eee eeeen cee eéankeeseenses 15

Beckwith v. United States, 425 U.S. 341, 96 S.Ct.

Ss Oe EE @ CEUED cccscccccepescceecs 10

Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80

De 466 Gb ebccccsceccenesoeceoes 13

Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8

TED otckecnenccenseceescsceess 13

Garner v. United States, 424 U.S. 648, 96 S.Ct. 1178,

Ge Ree PUP UETED coscccnsccdeniocs 8, 11, 12

Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17

EES Scacoccacesecensesesaces 11

Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709,

By Be BED GED cccccccccccscccccsecs 11

Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336,

ee Ee ED Se cecceccccncccsessee 13

Lynumn v. State of Illinois, 372 U.S. 28, 83 S.Ct.

Dae © eee BEE GED ccccccccesecessees 13

Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503,

SP Mam SO. CUED cc ccccccccccccsoseces 10

Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697,

Se TEED one ccdnusescensevenssne 11

Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57

SD ET ED. cccecsosevncesnccenesswe 13

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

Ree Ge CURED cc ccccccccctaces 9, 10, 11, 12

Oregon v. Mathiason. 429 U.S. 492, 97 S.Ct. 711, 50

De Sr OE cabeacecestevceuess 9, 10, 12

Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22

a CEE. Gok dba 6 Kns 608465s6050548 10

People v. Alston, 79 Misc.2d 586, 360 N.Y.S.2d 768

ER es rr er ee ree 14-15

People v. Parker, 100 Misc.2d 800, 421 N.Y.S.2d

ees cad cee ake eee ee da ens 14

People v. W., 24 N.Y.2d 732, 302 N.Y.S.2d 260, 249

EE ee i eee ne cee ee ecas 15

People v. Yukl, 25 N.Y.2d 585, 307 N.Y.S.2d 857,

256 N.E.2d 172 (1969), cert. denied, 400 U.S. 857

Pie een ete ckubuebes ts bashed ees 12

Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5

i EE co. ced en eeeeesee thas 9, 13

Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202,

te ff ff ee 13

State v. Johnson, 87 S.D. 43, 202 N.W.2d 132 (1972) 15

State v. Roberts, 14 Wash. App. 727, 544 P.2d 754

ee er rr err 14

United States v. Hall, 421 F.2d 540 (2d Cir. 1969) 12

United States v. Holmes, 594 F.2d 1167 (8th Cir. 1978). 14

United States v. Miller, 643 F.2d 713 (10th Cir. 1978) 14

United States v. Washington, 431 U.S. 181, 97 S.Ct.

re PCED « ceccccececoceeees a)

Constitutional Provisions:

ee, Ge, GN, YW ow cc ccccsccs 6, 8, 9, 11, 12, 13

in ks cence eeuends 6

Statutory Provisions:

EE ons ca ccceceovceeees 2

ee ED coc cccscececceseces 12

Minn. Stat. § 609.185 (2) (1974) .............4.. 6

Minn. Stat. § 609.255 (1980) ................45. 3

Minn. Stat. § 609.343 (1980) ...............045. 3

Vv

IN THE

Supreme Court of the Anited States

October Term, 1982

No. 82———

STATE OF MINNESOTA,

Petitioner,

vs.

MARSHALL DONALD MURPHY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE MINNESOTA SUPREME COURT

The Hennepin County Attorney, on behalf of the State

of Minnesota, respectfully petitions for a writ of certiorari

to review the judgment of the Minnesota Supreme Court

entered in this proceeding on September 21, 1982.

OPINIONS BELOW

The opinion of the Minnesota Supreme Court, repro-

duced and attached hereto as Appendix A, is reported at

324 N.W.2d 340 (Minn. 1982). The opinion of the Henne-

pin County District Court, reproduced and attached hereto

as Appendix B, is unreported.

STATEMENT OF JURISDICTIONAL GROUNDS

The judgment of the Minnesota Supreme Court was en-

tered on September 21, 1982. This petition for a writ of

2

certiorari was filed within sixty days of entry of that judg-

ment. The jurisdiction of this Court is invoked under 28

U.S.C. § 1257 (3) (1976).

CONSTITUTIONAL PROVISIONS

The Fifth Amendment to the United States Constitution:

“No person . . . shall be compelled in any criminal

case to be a witness against himself, nor be deprived

of life, ee or property, without due process of

law; .

The Due Process Clause of the Fourteenth Amendment

to the United States Constitution:

. . . [NJor shall any state deprive any person of life,

liberty, or property, without due process of law.”

STATEMENT OF THE CASE

On the morning of September 28, 1981, during the

course of a meeting with his probation officer, Marshall

Donald Murphy (“respondent”) confessed to the 1974 rape

and murder of a seventeen-year-old woman. In a pretrial

certified appeal of the Hennepin County District Court's

order ruling the confession admissible, the Minnesota Su-

preme Court held, solely on federal constitutional grounds,

that the confession could not be used in the State’s prose-

cution of respondent for murder in the first degree (App.

A-10).' The circumstances leading to respondent's confes-

sion are as follows:

3

On August 19, 1980, respondent pled guilty to the crime

of false imprisonment (Minn. Stat. § 609.255 (1980)) in

a prosecution for criminal sexual conduct in the second

degree (Minn. Stat. § 609.343 (1980)).’ Following this

plea, the Hennepin County District Court sentenced re-

spondent to a stayed prison term of sixteen months and a

probation term of three years (App. C-31). The conditions

of respondent’s probation required him, inter alia, to partici-

pate in a treatment program, to report to his probation

officer as directed, and to be truthful with her in all matters

(App. C-32). The terms of respondent’s probation also pro-

vided that failure to comply with these conditions “[could]

cause [respondent] to be returned to the Court for further

hearing or commitment.” (App. C-33). On September 22,

1980, the District Court appointed Mara Widseth (“Wid-

seth”), a probation officer with the Hennepin County De-

partment of Court Services, to supervise respondent’s pro-

bation (App. C-4).

Respondent is a twenty-nine-year-old high school gradu-

ate (App. C-25, C-29). He attended vocational school and

later served in the military (App. C-29). He is familiar with

the criminal justice system ‘App. C-29). Following his sen-

tencing, respondent participated in a treatment program for

sexual offenders and met with uis probation officer once a

month to discuss treatment, employment, and personal re-

lationships (App. C-5-6).

On July 14, 1981, upon learning that respondent was no

longer in treatment, Widseth wrote respondent a letter ask-

ing him to contact her immediately (App. C-7). The letter

stated that failure to do so would result in an immediate re-

"Respondent was originally charged with criminal sexual conduct in the

second He false

degree. Mwwtndne-.m....

4

quest for a warrant (App. C-35). Respondent contacted

Widseth by telephone and agreed to meet with her in her

office on July 21, 1981 (App. C-8).

At this meeting, respondent indicated that he did not

want to continue treatment (App. C-14). Widseth ac-

quiesced and told respondent that she would not seek to

have his probation revoked on that ground alone because

he was employed and seemed to be doing well in other

areas (App. C-14). Respondent and Widseth met again in

her office on September 11, 1981, without incident (App.

C-8, C-14).

On September 22, 1981, Widseth learned from a coun-

selor in respondent’s treatment program that during the

course of treatment respondent had admitted the commis-

sion of a rape and murder in 1974 and had also indicated

that he was not arrested because of the lack of evidence

(App. C-15). After discussing the matter with her super-

visor, Widseth decided that she would have to relay the

information she had received from respondent’s counselor to

the police ‘App. C-16). She then wrote respondent a letter

asking him to contact her in order to discuss a treatment

plan for the remainder of his probation (App. C-15). The

letter contained no threats (App. C-36).

Upon receiving Widseth’s letter, respondent contacted

her by phone and made an appointment to meet with her

in her office on September 28, 1981. At no time prior to the

September 28 meeting did Widseth contact the police or

the prosecutor’s office (App. C-20). Throughout the course

of this meeting the door to Widseth’s office was unlocked

and respondent was free to leave at any time (App. C-19-

20). He was in fact allowed to leave at the conclusion of the

meeting even though he had confessed to a crime (App.

C-19).

5

Widseth began the meeting by telling respondent the

substance of the information she had received from his

counselor (App. C-16). She then proceeded to stress the

need for further treatment in light of the behavioral rela-

tionship between the incident leading to respondent's false

imprisonment conviction and the rape and murder to which

respondent had confessed during treatment (App. C-9). Up-

on learning that his counselor had disclosed confidential in-

formation to his probation officer, respondent became angry

(App. C-9) and stated that “he felt like calling a lawyer”

(App. C-21, C-26). Widseth told respondent that “he would

have to deal with [that] outside the office” (App. C-16).

She then reiterated the need to discuss the behavioral rela-

tionship between the incidents leading to the false imprison-

ment conviction and the 1974 rape and murder, stating

that such relationship indicated the need for further treat-

ment (App. C-16).

Respondent denied committing the crime of false impris-

onment and stated that at the time of the rape and murder

he had been using drugs quite heavily ‘App. C-9). He also

stated that he was no longer using drugs (App. C-9). Wid-

seth “confronted” respondent with his claim of innocence

of the false imprisonment charge by reviewing with him

a police report and a presentence investigation regarding

the offense, as well as specific incidents reported by the

victim and respondent’s own statements concerning the

crime (App. C-17-18). Without prodding by Widseth, re-

spondent then proceeded to talk about the rape and mur-

der in detail (App. C-18).

At the conclusion of the meeting, Widseth told respon-

dent that she had a duty to relay the information he had

given her to the police and encouraged him to turn himself

6

in (App. C-18, C-28). Respondent said he understood that

Widseth was obligated to go to the police (App. C-22) and

asked her for time to think about whether or not to turn

himself in (App. C-18). Widseth acquiesced (App. C-18).

Respondent began crying and told Widseth that he had

committed the “ultimate sin” (App. C-11). He also told

Widseth that she “must really care about him” because she

gave him time to think instead of turning him in to the

police right away (App. C-18-19, C-21). Respondent took

a few minutes to compose himself and left the office (App.

C-19).

On September 30, 1981, respondent called Widseth and

told her that he had consulted an attorney and had been

advised not to turn himself in (App. C-28). On October 2,

1981, Widseth procured the issuance of an arrest and de-

tention warrant against respondent from the judge who

had sentenced him (App. C-14). On October 29, 1981, the

Hennepin County Grand Jury returned an indictment

charging respondent with murder in the first degree (Minn.

Stat. § 609.185 (2) (1974)).

At a pretrial hearing held before the Hennepin County

District Court respondent moved to suppress his confession

on the ground that it was obtained in violation of his Fifth

and Fourteenth Amendment rights. The trial court ruled

that the confession was admissible, finding that respondent

was not “in custody” or otherwise deprived of his freedom

of action in any significant way at the time of the confes-

sion (App. B-11-12), and that his statements were neither

“compelled” nor “involuntary” despite the absence of a

Miranda-type warning (App. B-13-14). On appeal the Min-

nesota Supreme Court reversed the order of the trial court

and remanded the matter for further proceedings, holding

as follows:

7

Because of the compulsory nature of the meeting, be-

cause [respondent] was under court order to respond

truthfully to his [probation officer’s] questions, and

because the [probation officer) had substantial reason

to believe that [respondent’s] answers were likely to

be incriminating we conclude that, as a matter of fed-

eral constitutional law, any failure on [respondent's]

part to claim the [Fifth Amendment] privilege [against

compelled self-incrimination] when he was questioned

does not bar his later reliance on the privilege in seek-

ing suppression of his confession. Stated differently,

we conclude that as a matter of due process, the [pro-

bation officer] should have warned [respondent] of his

privilege against self-incrimination before she ques-

tioned him and that her failure to do so, when she had

already decided to report his answers to the police,

bars use of [respondent’s] confession at his trial.

324 N.W.2d at 344 (Minn. 1982) (App. A-10). Following

the judgment of the Minnesota Supreme Court the Henne-

pin County District Court dismissed respondent's indict-

ment, staying the dismissal pending appeal to this Court

(App. D-3-4).

REASONS FOR GRANTING THE WRIT

t.

THE MINNESOTA SUPREME COURT HAS DECIDED AN

IMPORTANT QUESTION OF FEDERAL CONSTITU-

TIONAL LAW IN A WAY WHICH CONFLICTS WITH

APPLICABLE DECISIONS Of THIS COURT AND HAS

THEREBY EXTENDED THE MEANING OF ‘“‘CUSTODIAL

INTERROGATION” AND “COMPELLED SELF-IN-

CRIMINATION” BEYOND THE SCOPE OF THE FIFTH

AMENDMENT.

The question presented herein is whether a probationer

suspected of involvement in criminal activity must be ad-

vised of his Fifth Amendment privilege against compelled

self-incrimination prior to a noncustodial interview with his

probation officer. The Minnesota Supreme Court has held

that a probationer must be so advised where the conditions

of his probation require him to meet with his probation of-

ficer as directed and to be truthful with her, and the proba-

tion officer has reason to believe that the probationer’s an-

swers to her questions are likely to be incriminating. Implic-

it in the Court’s holding is that the probationary relation-

ship, like police custodial interrogation, contains inherently

coercive pressures which work to undermine the probation-

er’s will to resist and his ability to make a free and rational

choice. The logical corollary of the Court’s holding is that,

in the absence of a Miranda-type warning, all noncustodial

admissions by a probationer to his probation officer are

barred as inherently compelled even where, as in this case,

the probationer is not in custody or otherwise deprived of

his “free choice to admit, to deny, or to refuse to answer,”

Garner v. United States, 424 U.S. 648, 657 (1977), and

9

the totality of the circumstances reflects that the probation-

er’s free will was not overborne, Rogers v. Richmond, 365

U.S. 534, 544 (1961).

In holding that a probationer must be advised of his Fifth

Amendment privilege under the circumstances of this case,

the Minnesota Supreme Court has adopted an unduly ex-

pansive interpretation of the self-incrimination provision of

the Fifth Amendment. The Fifth Amendment does not pro-

hibit a person from incriminating himself. Nor does it pro-

hibit another from persuading him to do so. Moreover, un-

der controlling decisions of this Court, the Fifth Amend-

ment does not require the giving of a warning appropriate

to custodial interrogation in a noncustodial setting. Oregon

v. Mathiason, 429 U.S. 492 (1977); Miranda v. Arizona,

384 U.S. 436 (1966). Rather, it requires merely that a per-

son not be compelled to incriminate himself. Absent some

genuine compulsion to testify, therefore, the Fifth Amend-

ment does not automatically proscribe self-incrimination.

See United States v. Washington, 431 U.S. 181, 186 (1977).

To be sure, the probationary relationship may exert pres-

sures on probationers generally and, for many probationers,

may engender an atmosphere conducive to truth telling.

Nevertheless, the probationary status does not of itself place

a probationer under legal compulsion to incriminate him-

self. Absent some indicia of involuntariness, therefore, a

probationer’s noncustodial incriminating admissions are

not, as the Minnesota Supreme Court held, automatically

proscribed by the Fifth Amendment.

The major thrust of the Minnesota Supreme Court’s

opinion is that the principle of Miranda should be extended

to the present case even though respondent was not in

“custody or otherwise deprived of his freedom of action in

10

any significant way.” Miranda v. Arizona, 384 USS.

436, 444 (1966). The Minnesota Supreme Court appears to

have reasoned that the conditions of respondent’s probation

and the probation officer’s belief that respondent’s state-

ments were likely to be incriminating, made the probation

officer’s questions the functional equivalent of custodial

interrogation.

In Miranda, the Court reasoned that the coercive pres-

sures inherent in custodial surroundings trigger the need for

special procedural safeguards to protect the privilege against

self-incrimination. In subsequent decisions, this Court has

repeatedly emphasized that it is the custodial nature of the

surroundings, and not the “focus” of the government's in-

vestigation or the strength of the government’s suspicions,

which gives rise to the need for adherence to the require-

ments of Miranda. See Oregon v. Mathiason, 429 U.S. 492,

495 (1977); Beckwith v. United States, 425 U.S. 341,

347 (1976); Orozco v. Texas, 394 U.S. 324, 326 (1969);

Mathis v. United States, 391 U.S. 1, 4 (1968). In Mathia-

son this Court further indicated that “a noncustodial situa-

tion is not converted to one in which Miranda applies sim-

ply because a reviewing court concludes that, even in the

absence of any formal arrest or restraint on freedom of

movement, the questioning took place in a ‘coercive envir-

onment.’” 429 U.S. at 495. Thus, because respondent was

neither under arrest nor deprived of his freedom of move-

ment in any way, the Minnesota Supreme Court’s ruling

constitutes an unwarranted extension of Miranda. More-

over, under Mathiason, the court’s implicit finding that the

meeting between respondent and his probation officer took

place in a coercive environment is not sufficient to trigger

the requirement of a Miranda-type warning.

ll

_ The Minnesota Supreme Court’s decision is also in con-

flict with the general rule that, in the absence of some fac-

tor depriving an individual of his “free choice to admit, to

deny, or to refuse to answer,” the privilege against com-

pelled self incrimination must be timely claimed or it is

waived. See Garner v. United States, 424 U.S. 648, 657

(1976). This Court has held that where an individual under

compulsion to testify makes incriminating disclosures in-

stead of claiming his privilege against self-incrimination,

the government is not deemed to have compelled the in-

criminating disclosures absent a showing that the individual

was deprived of his freedom to claim the privilege. 7d. An

individual is deprived of that freedom only when subjected

to the pressures inherent in custodial interrogation, Miranda

v. Arizona, 384 U.S. 436 (1966), or when faced with the

choice between self-incrimination and the threat of legal

sanctions or job forfeiture, see Marchetti v. United States,

390 U.S. 39 (1968); Grosso v. United States, 390 U.S. 62

(1968); Garrity v. New Jersey, 385 U.S. 493 (1967).

The Minnesota Supreme Court now holds, in total dis-

regard of applicable decisions of this Court, that respondent

was deprived of his freedom to claim his Fifth Amendment

privilege even though he was neither in custody nor required

to choose between self-incrimination and the threat of legal

sanctions. The Minnesota Supreme Court’s decision is prem-

ised on the erroneous assumption that probation, like cus-

todial interrogation, contains inherently coercive pressures

which deprive a probationer of his freedom to invoke his

constitutional right to remain silent and render involuntary

an otherwise voluntarly statement.

The Minnesota Supreme Court overlooks the fact that

probation is a far cry from the sort of “incommunicado

12

interrogation . . . in a police-dominated atmosphere” which

formed the basis of the Court’s holding in Miranda. It fur-

ther overlooks the fact that the conditions of probation do

no require probationers to incriminate themselves and there-

fore do not present them with the inherently coercive choice

between self-incrimination and probation revocation. Had

respondent invoked his Fifth Amendment privilege instead

of making incriminating disclosures, he would have incurred

no legal sanctions. See Minn. Stat. § 609.14 (1980). Thus,

respondent cannot be said to have been denied the free

choice to remain silent since a valid and timely claim of the

privilege would have been available to him as a complete

defense at any subsequent probation revocation hearing.

See Garner v. United States, 424 U.S. at 665. That respon-

dent thought his probation might be revoked if he invoked

his right to remain silent is irrelevant, because a determina-

tion of voluntariness or compulsion requires the application

of an objective test. See Oregon v. Mathiason, 429 U.S.

492 (1977); United States v. Hall, 421 F.2d 540 (2d Cir.

1969); People v. Yuki, 25 N.Y. 2d 585, 256 N.E.2d 172,

307 N.Y.S. 2d 857 (1969), cert. denied, 400 U.S. 851

(1970).

Finally, an assessment of the totality of the circumstances

clearly demonstrates that respondent’s confession was the

product of his free and rational choice. Respondent is a

twenty-nine-year-old high school graduate with significant

experience in the criminal justice system. The interview

during which he confessed was brief and was conducted in

familiar surroundings. Respondent was neither threatened

nor physically abused. He was made no promises in ex-

change for his confession and was allowed to leave the pro-

bation officer’s office at the conclusion of the interview. In

13

finding respondent’s confession involuntary the Minnesota

Supreme Court disregarded the traditional criteria of in-

voluntariness aud relied instead on factors which do not

even approximate the circumstances this Court has recog-

nized in the past as rendering confessions involuntary. See

Brown v. Mississippi, 297 U.S. 278 (1936) (use of overt

physical force); Spano v. New York, 360 U.S. 315 (1959)

(use of deceptive promises and practices); Rogers v. Rich-

mond, 365 U.S. 534 (1961) ‘threat to have petitioner’s

wife taken into custody); Gallegos v. Colorado, 370 US.

49 (1962) (prolonged isolation of fourteen-year-old boy

from family and friends); Lynumn v. State of Illinois, 372

U.S. 528 (1963) (threat to have petitioner's children taken

away from her); Haynes v. Washington, 373 U.S. 503

(1963) (suspect refused permission to call wife or lawyer

until he confessed; Mincey v. Arizona, 437 U.S. 385

(1978) (hospital interrogation while petitioner was barely

conscious and weakened by pain and shock).

Whatever the desirable practice may be, the Minnesota

Supreme Court’s requirement that a probationer be advised

of his Fifth Amendment privilege against compelled self-

incrimination prior to a noncustodial interview with his

probation officer is far removed from the governmental

obligation under the Fifth Amendment to guard against

compulsion. Moreover, the Court’s requirement raises a

host of problems not only in the administration of proba-

tion as a viable sentencing alternative but also in the ad-

ministration of justice in general. Carried to its logical con-

clusion, the decision of the Minnesota Supreme Court re-

quires suppression of all noncustodial admissions to any

government agent in the absence of a Miranda-type warn-

ing and thereby transmutes the policy of the Fifth Amend-

14

ment against compulsion into a general policy against in-

criminating admissions.

THE MINNESOTA SUPREME COURT HAS DECIDED AN

IMPORTANT QUESTION OF FEDERAL CONSTITU-

TIONAL LAW WHICH HAS NOT BEEN, BUT NEEDS

TO BE, DECIDED BY THIS COURT TO RESOLVE THE

APPARENT CONFLICT BETWEEN THE DECISION OF

THE MINNESOTA SUPREME COURT AND THE DE-

CISIONS OF OTHER STATE AND FEDERAL APPELLATE

courts.

The exact factual circumstances giving rise to this case

have not been duplicated in other reported opinions. Nev-

ertheless, these factual circumstances resemble those con-

fronted by other state and federal appellate courts and may

be expected to recur in the future.

The courts which have confronted factual circumstances

similar to those presented herein have uniformly held that a

probationer’s noncustodial statements to his probation offi-

cer may be used against him in subsequent criminal proceed-

ings despite the absence of Miranda warnings. See United

States v. Miller, 643 F.2d 713 (10th Cir. 1978) (parolee in-

terviewed by his parole officer at home); United States v.

Holmes, 594 F.2d 1167 (8th Cir. 1979) (probationer’s

statements connected him to crime he later committed);

People v. Parker, 100 Misc.2d 800, 421 N.Y.S.2d 561

(1979) (probationer warned that anything he might say

would be used against him in revocation proceeding); State

v. Roberts, 14 Wash. App. 727, 544 P.2d 754 (1976) (in-

criminating statements made during telephone conversation

initiated by parolee); People v. Alston, 79 Misc.2d 586, 360

15

N.Y.S.2d 768 (1974) (incriminating statements made dur-

ing regularly scheduled visit); State v. Johnson, 87 S.D.

43, 202 N.W.2d 132 (1972) (probationer interviewed by

probation officer at home). People v. W., 24 N.Y.2d 732,

249 N.E.2d 882, 302 N.Y.S. 2d 260 (1969) (probationer

came to probation department voluntarily seeking help for

companion). See also Alspach v. State, — Ind. App. —, —

N.E.2d — (Oct. 6, 1982).

Because of the apparent conflict between the Minnesota

Supreme Court’s decision and the decisions of other state

and federal appellate courts and because of the burgeoning

uncertainties that surround the area of probation officer

interrogation of noncustodial probationers, it is important

for this Court to review the decision of the Minnesota Su-

preme Court.

CONCLUSION

For the foregoing reasons, the State of Minnesota re-

spectfully prays that the petition for a writ of certiorari to

review the judgment of the Minnesota Supreme Court be

granted.

Respectfully submitted,

Thomas L. Johnson

Hennepin County Attorney

Vernon E. Bergstrom

Chief, Appellate Division

Hennepin County Attorney’s Office

Robert H. Lynn

Assistant Hennepin County Attorney

Salomé Zusman

Staff Attorney

Hennepin County Attorney’s Office

November 1982.

A-l

APPENDIX

Appendix A

STATE OF MINNESOTA,

Plaintiff,

vs.

MARSHALL DONALD MURPHY.

Defendant.

Scott, J.

Dissenting:

Peterson,

Yetka, JJ.

Endorsed

Filed August 31, 1982

John McCarthy, Clerk

Minnesota Supreme Court

SYLLABUS

Where probation agent interrogating defendant proba-

tioner had substantial reason to believe that answers to

her questions would incriminate defendant and where de-

fendant as a condition of probation was required to meet

with her and to respond to her questions truthfully, agent

should, as a matter of due process, have warned defen-

dant of his privilege against compelled self-incrimination

before questioning him and agent's failure to do so bars

use of resulting confession against defendant at trial.

Reversed and remanded for further proceedings.

Heard, considered and decided by the court en banc.

A-2

OPINION

SCOTT. Justice.

Pursuant to Minn. R. Crim. P. 29.02, subd. 3 (1980).

the district court has certified to this court as important

and doubtful the question of the admissibility of a confes-

sion made by defendant, who is being prosecuted on a

charge of first-degree murder, to his probation agent. The

issues raised by the appeal relate to whether the confession

was obtained in violation of defendant’s privilege against

compelled self-incrimination, which is contained in U.S.

Const. amend. V.

In 1974 defendant was twice questi_ued by Minneapo-

lis Police in connection with the murder of a 17-year-old

Minneapolis girl but no charges were filed against him.

In 1980 defendant pleaded guilty to a reduced charge

of false imprisonment in a prosecution for criminal sexual

conduct in the second degree in connection with a dif-

ferent incident. The trial court sentenced defendant to a

Stayed prison term of 16 months, with 3 years probation.

As conditions of probation, defendant was ordered to

participate in a treatment program and to report to his

probation agent as directed by her. He was also ordered

to be truthful with her in all matters.

Thereafter, defendant met with the agent at her office

2pproximately once a month.

In July 1981 the agent received information that de-

fendant was no longer participating in the treatment

program. The agent wrote defendant a letter telling him

to contact her and set up a meeting. The letter added that

“Failure to do so will result in an immediate request for a

warrant.” That meeting was held in late July, with the

A-3

agent telling defendant at the end that notwithstanding his

lack of participation in the program, she was not going to

seek revocation of his probation because he was employed

and was doing well in other areas.

Defendant next met with the agent on September 11,

1981, without incident. He was next scheduled to arrange

« Meeting with the agent in mid-October.

On September 22, the agent learned from 4 counselor

at the treatment program that during treatment defendant

had said that he had once committed a rape/murder and

that the police did not arrest him because of the lack of

evidence.

Two days later the agent met with her supervisor and

they decided that she had to report this information to the

police. She told her supervisor that she would tell defen-

dant of their decision. That same day she wrote defendant

a letter stating, in full, “To further discuss a treatment

plan for the remainder of your probation, I am requesting

that you contact me upon your receipt of this letter to set

2n appointment.” The agent did not contact police be-

fore meeting with defendant but knew in advance that she

would tell the police about any incriminating statements

defendant made.

The meeting was held on the morning of September 28

in the agent’s cffice. The agent apparently opened the

meeting by telling defendant about the information which

she had received from the counselor and then said that

she now felt that defendant needed treatment. Defendant

became angry when he learned this. He stated that he

felt his confidences had been breached by the disclosure

and that he felt like calling an attorney.

The agent apparently replied that he would have to deal

A-4

with that outside the office; that her main concern was to

talk to him about the relationship of the prior crime and

the one of which he was convicted and about his need for

treatment under the circumstances.

The agent testified that her door was unlocked and that

defendant was perfectly free to leave at any time without

talking with her. Defendant testified that he did not feel

free to leave because that would have been a violation of

his probation. He also testified that he did not know he

had a right to refuse to answer her questions or to consult

an attorney, and that, because she put the entire conversa-

tion in the context of what the treatment plan for him

should be, it did not occur to him that she would go to the

police with what he said. He testified further that he had

had two probation officers before her and that neither of

them had ever gone to the police with anything he said.

The session therefore continued, with the agent first

talking with defendant about the crime of which he was

convicted, then about the rape/murder. When defendant

claimed that he really was not guilty of the crime of

which he was convicted, the agent confronted him with

the police reports and so on and challenged his claim of

innocence. When she talked with him about the rape/mur-

der. he confessed.

After defendant had made his confession, the agent in-

formed him for the first time that she would have to tell

the police what he had said. She also urged defendant to

turn himself in.

On September 30, after ta!king with an attcrney, de-

fendant told the agent that he had been advised not to

turn himself in te the police. On October 2, a warrant was

issued for defendant’s arrest. He was subsequently in-

A-5

dicted for first-degree murder with testimony given by the

agent. The district court denied a motion to suppress.

The issue before us is whether the confession to the

egent was obtained in violation of any of defendant's

rights. We hold that it was.

The United States Constitution, Amendment V, protects

one against being “compelled in any criminal case to be a

witness against himself.”

Generally, the government may not use a person’s in-

criminating statements in any subsequent criminal case in

which he is a defendant if the statements were legally com-

pelled by the government notwithstanding his claim of

the privilege against compelled self-incrimination. Garner

v. United States, 424 U.S. 648, 653 (1976).

Although the privilege is not self-executing but general-

ly must be claimed, the United States Supreme Court has

isolated certain situations in which the failure to claim the

privilege at the time of the compulsion will not bar the

defendant's later reliance on it at trial.

One such situation is custodial interrogation of a sus-

pect. In Miranda v. Arizona, 384 U.S. 436 (1966), the

Court held that not even a voluntary confession obtained

during custodial interrogation of a suspect by police could

be used against him in a later criminal prosecution unless

the prosecution showed that the suspect was given a

Miranda warning and knowingly and intelligently waived

the privilege. The reason for the exception in such cases

was stated in Garner v. United States, 424 US. 648, 657

(1976), as follows:

It is presumed that without proper safeguards the

circumstances of custodial interrogation deny an in-

dividual the ability freely to choose to remain silent.

A-6

[Citation omitted]. At the same time, the inquiring

government is acutely aware of the potentially in-

criminatory nature of the disclosures sought. Thus,

any pressures inherent in custodial interrogation are

compulsions to incriminate, not merely compulsions

to make unprivileged disclosures. Because of the dan-

ger that custodial interrogation posed to the adversary

system favored by the privilege, the Court in Miranda

was impelled to adopt the extraordinary safeguard of

excluding statements made without a knowing and

intelligent waiver of the privilege.

In another line of cases the Court held that persons re-

quired to file returns in connection with the federal oc-

cupational and excise taxes on gambling could exercise the

privilege simply by failing to file such a return and did

not have to submit a claim of privilege in lieu of the re-

turn in order to claim the privilege because such a submis-

son by itself would have been incriminating. Marchetti

v. United States, 390 U.S. 39 (1968); Grosso v. United

States, 390 U.S. 62 (1968). As stated in Garner. “The ba-

sis for the holdings in Marchetti and Grosso was that the

occupational and excise taxes on gambling required dis-

closures only of gamblers, the great majority of whom were

likely to incriminate themselves by responding” and there-

fore, as in the case of custodial interrogation of suspects,

“Any compulsion to disclose was likely to compel self-

incrimination.” 424 U.S. at 660.

A third situation in which the Court has held that the

defendant can rely on the privilege at trial notwithstand-

ing his failure to claim it at the time he made his incrimi-

nating statements is exemplified by Garrity v. New Jersey,

A-7

385 U.S. 493 (1967). In that case policemen who were

being investigated for corruption were told that they could

claim the privilege but that they would be discharged if

they did. The Court held that their incriminating dis-

closures could not later be used against them notwithstand-

ing their failure to claim the privilege when they were be-

ing investigated because the penalty of discharge for the

concededly valid exercise of the privilege foreclosed a

free choice to remain silent.

Finally, in Estelle v. Smith, 451 U.S. 454 (1981), the

Court held that it was error to allow a phychiatrist to testi-

fy at the penalty phase of a capital felony trial on the issue

of future dangerousness because the psychiatrist’s opinion

was based on incriminating statements that defendant

had made during a court-ordered psychiatric examination

to determine defendant’s competency for trial, at which

defendant had not been given a Miranda warning. Al-

though the psychiatrist was not a policeman, he was not

acting solely in defendant’s interests when ne examined

defendant and the examination was in fact a phase of the

edversary system. Since the defendant did not intiate the

evaluation or attempt to use the psychiatric evidence, the

defendant should not have been compelled to submit to

the examination without a warning to him that his state-

ments could be used against him.

A majority of courts in other jurisdictions which have

considered the admissibility of confessions made by a re-

leased offender to a probation or parole officer while in

custody and absent Miranda warnings have held such con-

fessions admissible in parole or probation revocation her-

A-8

ings, but inadmissible in a criminal prosecution.’ This rule

was more succinctly stated by the United States District

Court for the Western District of Pennsylvania as follows.

[While statements made to a probation or parole

officer without the Miranda warnings being given are

properly admitted in a parole revocation hearing

where various types of hearsay may be used to in-

form the court as to the parole violation, nevertheless

when these statements are used to prove an entirely

separate offense against the defendant and he is in

custody and under the compulsion of discussing mat-

ters with his parole or probation officer. Miranda

warnings must be given before such testimony can be

admitted in evidence in the trial involving the separ-

ate offense.

United States v. Steele, 419 F. Supp. 1385, 1386-87 (W.D.

Pa. 1976). A rationale underlying the suppression of

statements given a parole officer without Miranda warn-

ings is that released offenders are under heavy psycho-

logical pressure to answer inquiries made by their super-

vising officers. This pressure is recognized as sufficient to

render the interrogation inherently coercive."

‘See People v. Dusine. 67 Ill. App. 3d 109, 23 Ill. Dec. 781, 384 N.E. 2d

575, 577 (1978); State ex rel. Struzik v. ape. of Health & Soc. Serv.

77 Wis. 2d 216, 252 N.W.2d 660, 662 (1977); People v. Hardenbrook,

68 Mich. abe 640, 243 N.W.2d 705, 708 (1976); State v. Magby,

113 Ariz. 345, 554 P.2d 1272, 1276 (1976); State v. Roberts, 14 W

App. 727, 544 P.2d 754, 756-57 (1976); United States v. Deaton, 468

F.2d 541, 544 (Sth Cir. 1972); State v. Williams, 486 S.W.2d 468,

473 (Mo. 1972); State v. Lekas, 201 Kan. 579, 442 P.2d 11, 15

(1968). See also United States v. Rea, 678 F.2d 382 (2d Cir. 1982);

State v. Earnest, 293 N.W.2d 365 (Minn. 1980).

"See, e.g., State v. Gallagher, 38 Ohio St. 2d 291, 313 N.E.2d 396, 400 ,

(1974), cert. granted, 420 U.S. 1003, remanded, 425 U.S. 257, on re~,

mand, 46 Ohio St. 2d 225, 348 N.E.2d 336 (1976).

=

A-9

These cases, inter alia, illustrate the exceptions to the

rule that a person ordinarily must claim the privilege at

the time he is being compelled to incriminate himself if he

later wants to be able to prevent the use of the incrimin-

ating statements in any criminal prosecution of him. Jus-

tice Powell summarized the rule recently in Roberts v.

United States, 445 U.S. 552, 559 (1980), stating that

“[a]t least when the Government has no substantial reason

to believe that the requested disclosures are likely to be

incriminating, the privilege may not be relied upon unless

it is invoked in a timely fashion.” He then summarized

Garner by saying, in a footnote, that the rule is subject

to exception “when some coercive factor prevents an in-

cividual from claiming the privilege or impairs his choice

to remain silent ” 445 U.S. at 560, n.6.

We need not decide whether defendant ir fact claimed

the privilege in this case because we conclude that an ex-

ception must be made on the facts of this case tc the gen-

eral rule requiring a timely claim of the privilege.

Although defendant was not in custody in the usual

sense, his freedom of action was considerably restricted

at the time of the questioning. In Estelle v. Smith, 451

U.S. 454 (1981), the psychiatric examination occurred in

jail so that the questioning was custodial in the usual

sense. However, some of the language used by Chief

Justice Burger in the Court’s opinion suggests that the re-

sult might have been the same even if the examination

had not been conducted while the defendant was in jail

because defendant was under legal compulsion, in the form

of a court order, to submit to the examination.

In this case the examination occurred in the agent’s of-

fice. Defendant was there at her request but. unlike the

A-10

defendant in Oregon v. Mathiason, 429 U.S. 492 (1977),

who voluntarily went to the station to talk with the police

at their request defendant was there under legal compul-

sion since it had been made clear to him in the past that

it was a condition of his probation that he meet with the

agent when requested, It was also a condition of defen-

dant’s probation that he respond truthfully to the agent’s

questions. Failure to meet with her or to be truthful with

her could have constituted a violation of the terms of pro-

bation.

Also, the questioning was not just general questioning

but questioning by a government agent who had “sub-

stantial reason to believe that the requested disclosures

[were] likely to be incriminating,” Roberts v. United

States, 445 US. 552, 559 (1980), a fact bearing strong-

ly on whether defendant's failure at that time to claim the

privilege bars his reliance on the privilege as a ground for

suppression at trial.

Because of the compulsory nature of the meeting, be-

cause defendant was under court order to respond truth-

fully to his agent’s questions, and because the agent had

substantial reason to believe that defendant’s answers were

likely to be incriminating, we conclude that. as a matter

of federal constitutional law, any failure on defendant’s

part to claim the privilege when he was questioned does

not bar his later reliance on the privilege in seeking sup-

pression of his confession. Stated differently, we conclude

that, as a matter of due process, the agent should have

warned defendant of his privilege against compelled self-

incrimination before she questioned him and that her fail-

ure to do so, when she had already decided to report his

answers to the police, bars use of defendant’s confession

at this trial

All

When the enormity of this decision is contemplated,

we wonder whether there may be some other solution than

the exclusion of otherwise trustworthy evidence. John

Henry Wigmore Professor of Law Emeritus Fred E. Inbau,

in his article Over-Reaction—The Mischief of Miranda v.

Arizona, 73 J. Crim. L. & C. 797 (1982), writes that:

There is no better refutation of Miranda philosophy

than the opinion of Chief Justice Joseph Weintraub

of the New Jersey Supreme Court in a 1968 case, in

which he stated:

“There is no right to escape detection. There is no

right to commit a perfect crime or to an equal oppor-

tunity to that end. The Constitution is not at all of-

fended when a guilty man stubs his toe. On the con-

trary, it is decent to hope that he will. Nor is it dirty

business to use evidence a defendant himself may

furnish in the detectional stage. Voluntary confessions

accord with high moral values, and as to the culprit

who reveals his guilty unwittingly with no intent to

shed his irner burden, it is no more unfair to use

the evidence he thereby reveals than it is to turn

against him clues at the scene of the crime which

a brighter, better informed, or more gifted criminal

would not have left. Thus the Fifth Amendment does

not say that a man shall not be permitted to incrimi-

nate himself, or that he shall not be persuaded to do

so. It says no more than that a man shall not be

‘compelled’ to give evidence against himself ”

Id. at 809. At this writing, however, we believe that

Weeks v. United States, 232 U.S. 383 (1914), and its

A-12

progeny constitutionally demand the result arrived at in

this opinion

Reserved and remanded for further proceedings.

PETERSON, Justice (dissenting).

The essence of the majority decision is that the inter-

rogation of the defendant/probationer by his probation

officer, who failed to inform him of his rights under

Miranda v. Arizona, 384 U.S. 436 (1966), violated due

process and mandates suppression of the resulting confes-

sion. The most recent case to consider this issue sup-

ports a contrary conclusion. In United States v. Rea, 678

F.2d 382 (2d Cir. 1982), a probation officer received in-

formation concerning possible violations of probation by a

probationer. The officer went to the probationer’s home

and questioned the probationer about the alleged viola-

tions. The probationer, after unsuccessfully requesting an

attorney, gave incriminating responses. The probationer

later sought to suppress these responses, contending that

the interrogation was custodial and thus the admission of

the statements violated Miranda. The court characterized

this contention as “without merit” and stated:

The duty “to report” and to answer questions posed

by a probation officer is an integral obligation of the

probationary status. While a probationer is not de-

prived completely of his Fifth Amendment rights

and may assert them, he runs the risk that his re-

fusal to answer will lead to a charge of violation of

probation. Any other rule would make a mockery of

the supervision aspect of probation.

Id, at 390. While Rea is not foursquare with the facts

in this case, I see little difference between imprisoning a

A-13

defendant for violation of parole and imprisoning him

for a new crime. based in either case on evidence obtained

from his probation officer. There was no more coercion

of defendant Murphy in this case than there was of the

defendant in Reo, and hence, I cannot see that defendant

Murphy was “compelled” to give evidence against himself.

In this regard, I concur with the views of Chief Justice

Weintraub contained in the last paragraph of the major-

ity opinion.

YETKA, Justice (dissenting).

I respectfully dissent. I do not believe the privilege

against self-incrimination was intended to apply to the

situation presented here. The defendant is a parolee who

would be serving a prison sentence but for that fact. One

of the conditions of his parole is to meet periodically with

a probation agent. The probation officer’s function is to

work towards rehabilitating the parolee while protecting

the public interest. State v. Earnest, 293 NW.2d 365

(Minn. 1980). To do this job, the agent must be aware

of all of the parolee’s problems, both past and present. It

is entirely reasonable for the agent to ask a parolee if he

has had prior problems with the law. If the agent in this

case had gone first to the police before talking with the

defendant, she would have destroyed her credibility and

severely impaired her ability to assist the defendant.

We have held in State v. Earnest, 293 N.W.2d 365

(Minn. 1980), that a parolee has a duty to cooperate with

his agent and that an agent can search a parolee’s apart-

ment without a search warrant if the agent has probable

cause to believe the parolee has violated the terms of

parole. As we noted there, because of the special rela-

A-14

tionship between a probation officer and his client, the

law relating tu probationary searches cannot be strictly

governed by automatic reference to ordinary search and

seizure rules. Jd. at 368; see Latta v. Fitzharris, 521 F.2d

246, 251 (9th Cir.), cert. denied, 423 U.S. 897

(1975) (parole rather than probation situation). Thus,

I would hold this is not an ordinary custodial situation to

which the privilege should apply. Even if it is held to be

custodial, I would hold that this parolee’s situation is an

exception to the rule and that the privilege does not apply.

STATE OF MINNESOTA, SUPREME COURT

STATE OF MINNESOTA,

82-271 vs.

MARSHALL DONALD MURPHY,

Defendant.

Pursuant to an order of Court heretofore duly made

and entered in this cause it is determined and adjudged

that the issue before this court as to whether the confession

to the agent was obtained in violation of any of the de-

fendant’s rights is answered in the affirmative and the

matter is remanded to the district court for further pro-

ceedings in accordance with the opinion, a certified copy

of which is attached hereto.

A-15

Dated and Signed September 21, 1982.

BY THE COURT.

Attest:

JOHN McCARTHY, Clerk.

STATE OF MINNESOTA

SS.

SUPREME COURT

I, John McCarthy, Clerk of said Supreme Court, do

hereby certify that the foregoing is a full and true copy

of the Entry of Judgment in the case therein entitled, as

appears from the original remaining of record in my of-

fice; that I have carefully compared the within copy

with said original and that the same is a correct transcript

therefrom.

Witness my hand and seal of said Supreme Court at the

Capitol, in the City of St. Paul September 21, 1982.

JOHN McCARTHY, Clerk.

By /s/ Wayne Tschimperle, Deputy.

B-1

Appendix B

STATE OF MINNESOTA DISTRICT COURT

County of Hennepin Fourth Judicial District

STATE OF MINNESOTA,

Plaintiff,

vs.

MARSHALL DONALD MURPHY,

Defendant.

OMNIBUS II & MEMORANDUM

D.C. No. 79037

C.A. No. 81-2515

The above-entitled matter came duly on before the

Honorable Jonathan Lebedoff, one of the Judges of the

above-named Court, upon defendant’s motions to suppress

the testimony of his probation officer, Mara Widseth, and

personnel from Alpha House regarding any of defendant's

statements; to dismiss the grand jury indictment; to sup-

press evidence seized from defendant; to suppress any evi-

dence taken as a result of identification procedures; and

upon the State’s motion in limine to acquire testimony

from the Alpha House employees.

The State appeared by Robb Lynn, Esq., Assistant

Hennepin County Attorney, and the defendant appeared

by Mark Wernick. Esq.

Upon all the files, records, testimony at the Omnibus

hearing and memoranda of counsel,

IT IS ORDERED THAT:

B-2

1. Defendant's motion to exclude the testimony of his

probation officer is denied.

2. Defendant’s motion to dismiss the grand jury in-

dictment is denied.

3. Defendant's motion to suppress evidence seized

from defendant as a result of identification procedures is

denied.

4. The State’s motion to require testimony from Alpha

House employees is denied.

Let the attached memorandum be made a part of this

order.

DATED: February 9, 1982.

BY THE COURT:

/s/ Jonathan Lebedoff

Judge of District Court

MEMORANDUM

This prosecution is by indictment for Murder in the

First Degree of Sherrie Cole on or about October 29, 1974.

Defendant was questioned by police on at least two oc-

casions soon after the body of Sherrie Cole was found on

November 21, 1974, but no charges were brought, ap-

parently because the evidence was insufficient.

On August 19, 1980, defendant pled guilty before

Judge Durda to the charge of False Imprisonment in Hen-

nepin County District Court File No. 75330. He was sen-

tenced on September 22, 1980, to serve sixteen months

at Stillwater, execution stayed three years, with three

B-3

years probation. Mara Widseth, of the Hennepin County

Department of Court Services, was appointed to supervise

this probation.

Among the conditions of probation were the normal

ones. including the requirement to be truthful to the pro-

bation officer and to report to the probation officer as

directed Additionally, defendant was required to pursue

treatment at Alpha House, a treatment program designed

to deal with sexual offenders containing both in-patient

and out-patient components.

Shortly after being placed on probation, the defen-

dant began treatment at Alpha House. On or about July

3, 1981. the probation officer received information from

Alpha House to the effect that the defendant was not

pursuing treatment. On July 14, 1981, the probation of-

ficer wrote the defendant a letter requesting that he con-

tact her. The letter stated, “Failure to do so will result in

an immediate request for a warrant” (Def. Ex. 3). In re-

sponse to that letter, the defendant scheduled a meeting

with the probation officer at her office. The meeting oc-

curred on July 21, 1981. At that meeting, the probation

officer told the defendant that she would not seek to re-

voke his probation for leaving treatment because he was

apparently doing well in other areas. However, the pro-

bation officer still retained the authority to have the de-

fendant pursue treatment. On October 2, 1981. the sen-

tencing Court, at the request of the probation officer, is-

sued an Arrest and Detention Warrant against the defen-

dant which alleged that “although the defendant pursued

treatment at Alpha House, he was terminated for failure

to actively work on a problem area and to comply with the

terms of the group” (Testimony of Mara Widseth).

B-4

On September 11, 1981, the defendant met again with

his probation officer at her office. This meeting was one

of several monthly meetings which the defendant ar-

ranged by calling the probation officer for an appoint-

ment. After this meeting, the defendant was under no ob-

ligation to arrange another meeting with his probation

officer until mid-October, 1981.

On September 22, 1981, the probation officer was told

by a counselor at Alpha House that during treatment the

defendant said that he had committed a rape/murder and

that the police did not arrest him because of a lack of

cvidence.

On September 24. 1981, the probation officer met with

her supervisor in order to discuss what should be done

with the new information. They decided that the probation

officer must report the information to the police. The pro-

bation officer told her supervisor that she would inform

the defendant of their decision. On that same day, the pro-

bation officer wrote the defendant a letter which said, “To

further discuss a treatment plan for the remainder of your

probation, I am requesting that you contact me upon your

receipt of this letter to set an appointment.” (Def. Ex. 4.)

At 10 a.m. on September 28. 1981, in response to the

probation officer’s letter, the defendant met with her at

her office. At the time of the meeting, the defendant had

not slept for 24 hours, having worked from 10 p.m. to

6 a.m. the previous evening. During this meeting, the pro-

bation officer “confronted” the defendant with the informa-

tion she had received from Alpha House. She also told

the defendant that although she had previousiy allowed

him to continue on prot tion without treatment, she now

telt strongly that he needed further treatment. The defen-

B-5

dant became angry because he thought that everything

he said in treatment was confidential.

Both the probation officer and defendant testified that

he spoke of obtaining an attorney. Her understanding

was that the defendant was interested in an attorney for

a civil action against Alpha House for the breach of con-

fidentiality; he maintains he was interested in protecting

his rights relative to criminal prosecution. In any case,

she told him he would have to contact an attorney out-

side her office and then proceeded with the interview.

The thrust of defendant’s statement was that the false

imprisonment and rape/murder were unrelated. He main-

tained that he was innocent of the false imprisonment

charge and explained that the rape/murder occurred at a

time when he had just returned from the army. had broken

vp with his girlfriend, and was using drugs heavily. He

gave the details of the rape/murder.

After the defendant had talked about the murder, the

probation officer told him that she was obligated to take

her information to the police. By this time, the defendant

had started to cry. The probation officer encouraged the

defendant to turn himself in to the police. The defendant

asked for time to think about it, and the probation 9f-

ficer gave him “permission” to do so. He then left her ot

fice.

That evening, the defendant made several attempts to

contact a lawyer. On September 30, 1981, after having

talked with a lawyer, the defendant called his probation of-

ficer and told her that he was advised not to turn himself

in to the police. The record is not clear as to whether or

not the probation officer had already contacted the police.

In any event, on October 2, 1981, a warrant for Murder

B-6

*n the Second Degree was issued against the defendant,

and he was subsequently indicted for Murder in the First

Degree

Defendant asserts three independent but interrelated

grounds for excluding testimony regarding his confes-

sion to the probation officer. First, he argues that the set-

ling was custodial and that therefore the Miranda

warnings were a prerequisite for admissibility. Alternative-

ly he argues that even if the full Miranda warnings were

not required he should at least have been informed that

his statements could be used against him in a criminal

trial and that he had the right to speak to a lawyer. Final-

ly, he asserts that the statements were compelled within

the meaning of the Fifth Amendment and consequently in-

admissible regardless of any requirements for warnings.

Defendant does not directly claim that his Sixth Amend-

ment right to counsel was denied, but rather that his re-

auest for counsel was an invocation of the privilege against

self-incrimination

In the opinion of this Court, the setting of the interview

was not custodial and the Miranda warnings were not re-

quired. While undoubtedly it would have been the better

practice to have given some kind of warning, we do not

feel such a warning was an absolute prerequisite to finding

the statement to be voluntary. We believe that the totality

of the surrounding circumstances indicate (sic) that this

statement was in fact voluntarily given and consequently,

testimony concerning it is admissible.

I. MIRANDA

Miranda v. State of Arizona, 384 U.S. 436 (1966),

establishes a presumption that statements resulting from

B-7

an in-custody interrogation by law enforcement agents are

involuntary unless preceded by very specific procedural

safeguards. As subsequent cases make clear, custody is an

essential element to trigger those procedural safeguards.

Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711. 50 L.Ed

2d 714 (1977), Beckwith vy. United States, 425 U.S. 341,

96 S.Ct. 1612, 48 L.Ed 2d 1 (1976). Citing the above two

cases, the Minnesota Supreme Court has stated:

“The test for determing the need for a Miranda

warning is not whether the interrogation has coercive

aspects to it or whether the investigation has focused

on the person being questioned, but whether the per-

son being questioned is in custody or is deprived of

his freedom of action in any significant wav.”

State v. Palm, 299 N.W.2d 740 (1980).

Defendant argues that he was here deprived of his

freedom of action in a significant way, citing the facts

that he was under an obligation to meet with his probation

officer, that he was obliged to tell her the truth and coop-

erate, and that she already had grounds to revoke his

probation (his failure to continue the treatment). His

failure to cooperate would have constituted additional

grounds to revoke his probation.

In support of his position that these elements deprived

him of his freedom of action in a significant way, defen-

dant cites the Court to State v. Fields, 621 P. 2d 651

(Ore. App. 1980), where a probationer was required to

come to his probation officer’s office to fill out his month-

'y report which he was late in filling out and which would

have been grounds for revocation. While the report was

being filled out the probation officer, knowing the proba-

tioner was suspected of being involved in a car theft,

called a policemen who came to question the probationer.

Prior to beginning the questioning, the police officer told

the probationer that he was not under arrest and that he

didn’t have to answer any questions. He none-the-less con-

fessed. The Court held that for the purposes of Miranda,

he was in custody and the lack of the warnings made the

confession involuntary. In coming to this conclusion, the

Court analyzed the factors in the probation officer/pro-

bationer relationship that defendant urges us to rely on

here. On rehearing, the Court distinguished this case from

Mathiason v. Oregon, supra. where a burglary suspect re-

sponded to a state trooper’s message to call him, then

arranged to meet him at the trooper’s office and there gave

a confession, on the basis that Mathiason went voluntarily

where Fields was required to come to the probation of-

ticer’s office or face the potential consequence of having

his probation revoked. State v. Fields, 624 P.2d 655

‘Ore. App. 1981).

Admittedly, Fields presents many similarities to the fact

situation involved in this case. A significant distinction, as

defendant recognizes, is that in Fields the interrogator

was in fact a policeman. He points out, however, that the

focus of the Court was on the relationship with the pro-

bation officer and not that with the police officer.

It is apparent, however, from cases cited to the Court by

the State, that courts do not universally arrive at the same

conclusion the Oregon appellate court did In United

States v. Holmes, 594 F. 2d 1167 (8th Cir. 1979), a con-

versation with a probation officer regarding black powder

weapons which occurred when the defendant was not in

custody or charged with 2s crime was considered admis-

B-9

sible without Miranda warnings in his subsequent trial fx

allegedly receiving firearms because he was neither in cus-

tody nor charged at the time of the conversation. United

States v. Miller, 643 F. 2d 715 (1981) rejected the notion

that the parole officer-parolee relationship was such that

the parolee was in a custodial interrogation situation

when interviewed in his home. People v. Petit, 97 Ill. App.

693, 423 N.E. 2d 513 (1981) similarly found statements

to a probation officer at an informal meeting (where it

took place is not clear) admissible to show that he was a

sexually dangerous person. Jn re Ricahrd T., 79 Cal.

App. 3d 382, 144 Cal. Rptr. 856 (1978), a minor actively

on parole to the Youth Authority was picked up by his

parole officer and taken to the parole officer's office after

the parole officer had gone to the minor’s home and found

a gun on the couch. While driving to the office and

once there the parole officer questioned the minor regard-

ing his involvement with the gun and severa! specific in-

cidents. The gun was determined to have been stolen and

the minor was charged with receiving stolen property. One

distinguishing feature is that the Court felt, somewhat con-

trary to the evidence, that at the time of the initial investi-

gation the parole officer was only investigating a parole

violation and not a new crime. However, in People v. Al-

ston, 79 Misc. 2d 586, 360 N.Y.S. 2d 768 (1974), the

probation officer did know of a pending homicide inves-

tigation and questioned defendant when receiving Metha-

done. His statements were admissible.

People v. Parker, 100 Misc. 2d 800, 421 N.Y.S. 2d

561 (1979), also presented facts similar to the instant

case. Defendant notified his parole officer he had been ar-

rested. These cherges were subsequently dismissed. On the

B-10

day defendant told his parole officer of the dismissal, the

officer asked defendant to come see him. During the in-

terview defendant made a highly incriminating statement.

The parole officer notified police; testified before the grand

jury; and defendant was subsequently reindicted. The is-

sue before the Court was whether admissions made to a

parole officer can be introduced into evidence where no

Miranda warning was given. The Court answered in the

affirmative, stating:

“Miranda established the classic definition of cus-

todial interrogation as ‘questioning initiated by a law

enforcement official after a person has been taken

into custody or otherwise deprived of his freedom

of action in any significant way.’

“The defense has argued that this visit to the pa-

role officer was in fact a custodial setting in that the

defendant was under heavy ‘psychological’ pressure

to respond to questions put to him by his parole of-

ficer as that officer has the power to detain and ar-

rest a parolee.

“This court cannot agree with defendant's conten-

tion; the test laid down in People v. Yuki, 25 N.Y.

2d 585, 307 N.Y.S. 2d 857, 256 N.E. 2d 172 for

determining whether a defendant is in custody ‘is not

what the defendant thought. but rather what a rea-

sonable man, innocent of any crime would have

thought had he been in defendant's position.’

“In this particular case we have a fact pattern

whereby a parolee -nitiated routine contact with a

parole officer following an arrest and prior to a sub-

B-11

sequent court appearance, and this parolee was ad-

vised at that time ‘to come in and see’ his parole of-

ficer following the next court appearance. This does

not convey the element of ‘the incommunicado police

dominated atmosphere of custodial interrogation

and overbearing of the subject’s will’ necessary for

determining custodial interrogation established by

People v. W., supra; but rather the freedom to come

and go after each visit to the parole officer would char-

acterize the questioning as routine and an integral

part of the parole process. These monthly visits took

place from April, 1978 until at least November, 1978,

and after each visit the defendant was free to leave.”

These cases provide ample support for our conclusion

that defendant should not be deemed in custody here. They

recognize that there is indeed an element of compulsion

in the probation officer/probationer relationship. that the

probationer’s appearance at a probation office is not en-

tirely voluntary and that there are consequences which

could follow from being dishonest with the probation of-

ficer.

Here defendant was required to meet with his proba-

tion officer in her office. He, however, was resnonsible for

setting up the time. The office was a place where he had

Deen at least twelve times during the previous year. He

came in on his own; he feft’on his own. While we do not

ascribe any particular significance to it. we note that the

door to the office was open at all times during the inter-

view. We cannot turn this into the custodial setting the

procedural safeguards of Miranda was (sic) aimed at. In

each of the four interviews there the defendant was subject

B-12

to several hours of police interrogation in police interroga-

tion rooms following arrest. Mathiason, supra, makes clear

the limits of what is to be considered custodial. We do not

think the distinction the Oregon Court makes in Fields is

sufficient to turn this into a custodial setting or one

which significantly deprives the defendant of his freedom.

The issue of voluntariness apart from Miranda warnings

raises many of the factors already discussed but does

present a closer question.

An inculpatory statement is only admissible if it was

voluntarily given. See, State v. Biron, 266 Minn. 272. 123

N.W. 2d 392 (1963). When a claim of involuntariness

is made, the court must look at the totality of the circum-

stances to determine whether “the behavior of . . . law en-

forcement officials was such as to overbear petitioner’s will

tc resist and bring about confessions not freely self-de-

termined.” Beckwith v. United States, 425 U.S. 341, 348

(1976), citing Rogers v. Richmond, 365 U.S 534, 544

(1961). The totality of relevant circumstances include age.

maturity, intelligence, education, experience, and the abil-

ity to comprehend. See, State v. Hogan, 297 Minn. 430,

212 N.W. 2d 664 (1973). A confession may not be extrac-

ted by any sort of threat or violence or obtained by direct

or implied promises. Malloy v. Hogan, 378 U.S. 1 (1964).

The court must review the facts surrounding the confes-

sion, determine how defendant reacted to these external

facts, and decide the legal significance of how defendant

reacted. See, State v. Orscanin. 283 N.W. 2d 897, 899

(Minn. 1979), cert. denied 100 S.Ct. 464 [(1979)].

Phrased as defendant puts it, the issue is whether or not

he was compelled to make the statement. In United States

v. Washington. 431 U.S. 181 (1977) the court said:

B-13

“Garner holds that the Self-Incrimination Clause

is violated only when the Government compels dis-

closures which it knows will incriminate the de-

clarant. That is, only when it intentionally places the

individual under ‘the compulsion to incriminate, not

merely compulsion to make unprivileged disclosures.” ’

In Washington, grand jury testimony was found admis-

sible in spite of a failure to warn that the information

could be used to indict the witness.

Here there is no question that the probation officer

knew that the information she was requesting would be

incriminating, and further that she was intending to turn

the information over to the police. We have nc problems

assuming that she was a government agent. The question

remains, however whether or not the statement was “com-

pelled” or, alternatively voluntary (sic). We think not.

As we have already noted, defendant was responsible

for setting the time of the appointment. He chose to make

it at a time when he apparently had not slept for twenty-

four hours. Very likely he was tired, but that tiredness

was of his own doing. He could have set up a time when

he would have been rested. Again, he was meeting in

a place familiar to him and with a person whom he had

met a number of times. He was 29 years old, a high

school graduate, and has made no claim of any mental de-

ficiences. He had been previously convicted of other fel-

onies and was familiar with the criminal justice system.

When confronted by the probation officer, he was angry

at his confidences being disclosed but talked with her free-

ly. He now claims that he asserted a right to talk to an at-

torney, and whatever his real intent may have been, we

B-14

are persuaded by the probation officer’s testimony that

he did not express that desire in any context other than

a civil suit for the breach of confidentiality. Against these

factors is the fact that a condition of his probation was

that he be honest with his probation officer, and that he

was there ostensibly to discuss further treatment in regard

to his current probation. Failure to follow through with

either of these could have resulted in revocation of the

probation and potential imprisonment. These factors were

present in all of the cases previously discussed concern-

ing statements to probation or parole officers and in all

but one case the courts found the confessions admis-

sible. Considering this and all of the other surrounding

circumstances we believe this confession to have been vol-

untary.

In Orscanin, supra, the Minnesota Supreme Court

found statements made after six days in a six-by-nine or

ten feet lockup to have been voluntary. The defendant was

eighteen years old, facing his first contact with adult

court and had been led by his probation officer to believe

the matter would be handled in juvenile court if “he

cleared things up.” Even with the full Miranda warnings

the factors there appear to us to be much more compelling

than those here.

As we noted earlier. defendant’s argument that he was

entitled to some kind of warning regarding the use of his

confession represents what we would consider to be the

better practice, but the lack of such warnings do (sic) not

violate the voluntariness of the confession given here.

MOTION TO DISMISS INDICTMENT

Defendant’s motion to dismiss the grand jury indict-

ment is based on the premise that the testimony of Mara

B15

Widseth is inadmissible. Having determined that it is ad-

missible. it appears to the Court that the evidence admis-

sible at trial is sufficient to establish probable cause to be-

lieve that Murder in the First Degree was committed.

The motion to dismiss is accordingly denied.

STATE’S MOTION IN LIMINE

The State and defendant have stipulated that the pro-

visions of 42 CFR Chapter | are applicable to the Alpha

House programs The regulations have been promulgated

pursuant to 21 U.S.C. §1175 and 42 U.S.C. §4582 provid-

ing for confidentiality of patient records in federally as-

sisted drug and alcohol rehabilitation programs. We do

not believe a treatment program under these regulations

can be segmented, as the State would have us do, into

drug and alcohol components, to which the regulations

apply, and sexual therapy, to which they don’t 42 CFR

§2.61-2.67 make (sic) provisions for court ordered disclos-

ures and in §2.65 specifically deals with investigation and

prosecution of patients. The State argues that this should

not be governed by §2.63 which limits disclosures under

the sub part to objective data such as the facts or dates

of enrollment. We find no support for this reading, par-

ticularly in light of §2.63-1, which we quote in full:

“In the three-year period subsequent to the original

enactment of 21 U.S.C. 1175, not a single occasion

was reported to the Special Action Office for Drug

Abuse Prevention on which afattempt was made to

secure a (b) (2) (C) order authorizing the disclosure

of a confidential communication by a patient to a

counsellor or other member of the staff of a treat-

B-16

ment program. In all cf the comments and testimony

received on the draft regulations published August

22, 1974, there was nothing to suggest any circum-

stances under which a court order authorizing such a

disclosure would be either desirable or appropriate.

Yet the mere possibility that such an order might be is-

sued is to some a source of anxiety which impairs the

effectiveness of treatment. Such an ongoing negative

effect clearly outweighs the remote theoretical possibil-

ity that some perculiar circumstance might arise in

which judicial authorization for such a disclosure

might be sought. Accordingly, the limitation imposed

by §2.63 on the scope of (b)(2)(C) orders to preclude

that possibility, and hence to eliminate its adverse in-

fluence on treatment services, appears to be a proper

exercise of rulemaking power.”

Even were we not persuaded that this section precludes the

testimony the State seeks, we would disallow it nonetheless

under §2.65(c) (3) and (4). The information the State seeks

is essentially the same as will be testified to by Mara Wid-

seth, which the Court has determined to be admissible.

Further. we believe the forced disclosure of what was re-

vealed during group and individual therapy would sig-

nificantly limit the future efficacy of such programs.

Finally, we note that while this ruling makes it un-

necessary to address the State law issue, it appears that the

Minnesota Legislature in Minn. Stat. 254A.09 and 595.02,

Subd. 7, has provided confidentiality protections which

would preclude this testimony even if the federal statute

was not applicable.

B-17

ORDER

D.C. No. 79037

C.A. No. 81-2515

WHEREAS, the question of law posed by Defendant's

Motion to suppress statements made by Defendant to his

probation officer are both important and doubtful; and

WHEREAS, Defendant has requested that the Court

report this case so far as may be necessary to present

those questions of law and certify the report to the Su-

preme Court;

IT IS HEREBY ORDERED, that Defendant's Motion

to suppress statements made by Defendant to his proba-

tion officer be certified to the Supreme Court, pursuant to

Rule 29.02, Subd. 4, Rules of Criminal Procedure.

IT IS FURTHER ORDERED, that the February 16,

1982, trial date be stricken and that all proceedings in this

case be stayed until the decision of the Supreme Court.

BY THE COURT

JONATHAN LEBEDOFF

Judge of District Court

Dated: February ——, 1982.

C-1

Appendix C

STATE OF MINNESOTA,

Plaintiff,

vs.

MARSHALL MURPHY,

Defendant.

PARTIAL TRANSCRIPT OF PROCEEDINGS

DC FILE NO. 79037

CA FILE NO. 81-2515

The above-entitled matter came duly on for hearing

before the Honorable Johathan Lebedoff, a judge of the

above-named court, at the Hennepin County Govern-

ment Center, Minneapolis Minnesota, on the 12th day of

January. 1982.

Appearances:

Robert Lynn, Esq., Assistant County Attorney, appeared

as counsel for and on behalf of the plaintiff.

Mark Wern:ck, Esq., appeared as counsel for and on be-

half of the defendant.

Defendant was present.

Claudette Ask was present as court reporter.

(2] (January 12, 1982)

Mr. Lynn: Your Honor, this is State of Minnesota

versus Marshal! Donald Murphy, District Court File 79037

County Attorney’s File 81-2515. We are fresent in

chambers, Mark Wernick appearing on behalf of the De-

fendant Marshall Murphy, Robert Lynn on behalf of the

State of Minnesota. Mr. Jerry Chaplin is here from Alpha

House.

C-2

Mr. Zalasky: Jeff Zalasky.

Mr. Lynn: We are here in advance of taking testimony

at the omnibus hearing, and trial is scheduled, your honor,

I believe it’s February 16.

The Court: Did you want to place something on the

record, Mr. Wernick?

Mr. Wernick: Yes, Your Honor. My understanding is

we are now about to go out in the courtroom and take

testimony with regard to a statement made by Marshall

Murphy to his probation officer, Mara Widseth. In order to

cross-examine Ms. Widseth about that statemert, it is go-

ing to be necessary for me to ask her questions as to why

she was interviewing Mr. Murphy at that time. That will

involve answers by Ms. Widseth which reflect conversa-

tions that she had with a psychologist at Alpha House

which is where Mr. Murphy had been in treatment. And

i want the record to be very clear that it is necessary I

ask those questions to establish my client’s Fifth Amend-

ment rights, and I in no way intend to waive any privileges

that he has by eliciting that testimony.

The Court: Okay. We will note that statement on the

record, and now we can go out and take the testimony.

As long as we are on the record, the record may further

reflect that we are going to take the testimony now, as I

understand it, of two witnesses for the state, a police of-

ficer and Ms. Widseth. The defense may call the defendant

as well. There’s going to be no other testimony taken at

this time, and it’s the thought of all that a stipulation as

to the other facts can be obtained and furnished to the

court forthwith which would obviate the necessity of any

additional testimony. If that proves unsuccessful, nothing

ir this hearing would foreclose an additional hearing be-

C-3

ing held for the sole purpose of taking additional testimony

consistent with the issues raised in this hearing. Okay?

All right. Let’s go out.

Mr. Wernick: One more thing for the record. I had

also asked the court, since this hearing will involve

statements made by Mr. Murphy which may or may not

be admissible at the trial, I have asked this court to con-

duct this hearing in chambers noting there are at least

two members of the press in the courtroom.

The Court: All right. There was a timely motion.

[4] Does the state have a position on that?

Mr. Lynn: Generally the state is opposed to closing

wny sort of hearing. I think if we warn these people in-

volved, they understand their duties of free press and fair

trial standards, and I think we can impose upon them

not to publish this until the court’s ruled.

The Court: Well, I don’t know I can count on that. I

am going to note on the record out in the courtroom a re-

quest was made that this be held in chambers. I am not,

but I am just going to note that that was declined, and

T hope that they use the same judgment that they have

used.

[5] Mara Widseth

Mr. Lynn: Your Honor, the next witness the state

would call at this time is Mara Widseth.

Mara Widseth, called as a witness, being duly sworn,

testified as follows:

The Clerk: Please state your full name.

The Witness: Mara Widseth.

C-4

Direct Examination

By Mr. Lynn:

Q. Ms. Wiaseth, what’s your occupation? A. Pro-

bation officer, Hennepin County.

Q. How long have you been a probation officer in

Hennepin County? A. Since November of 1979.

Q. Do you know a man named Marshall Murphy?

A. Yes, Ido.

Q. Is the man you know as Marshall Murphy seated

tomy rightinthiscourtroom? A. Yes, he is.

Q. How is it that you know Marshall Murphy?

A. Marshall was placed on probation to me 'n 1980.

Q. I ask you to speak a little louder. I am having

trouble hearing you. A. Marshall was placed on proba-

tion to me in 198C.

Q. Do you recall the date in 1980 that he was placed

[6] on probation? A. The exact date was September

22, 1980.

Q. And for what offense was he on probation?

A. False imprisonment.

Q. Who was the judge involved? A. Judge Durda.

Q. For what period of time was he placed on proba-

tion? A. Three years.

Q. As his probation officer, are you familiar with the

terms and conditions of his probation? A. Yes, Iam.

Q. Can you tell us what those terms and conditions

were? A. Yes. There are standard conditions of proba-

tion. Would you like those, also?

Q. I believe the court and counsel are familiar with

those. A. Okay. The only special condition of proba-

tion that was ordered was that Marshall pursue treatment

at Alpha House

C-5

Q. Did he in fact pursue treatment at Alpha House?

A. Yes, he did.

Q. Does your file indicate when it was he began that

treatment at Alpha House? [7] A. It was—I don’t—

I do not have the exact date. It was sometime in between

September 22 when he was originally placed on probation

and October 15 when we next met.

Q. Now, you indicated you met with Marshall Murphy

then on October 15, correct? A. Correct.

Q. At the time that he was placed on probation to

you. did you go over with Marshall Murphy the conditions

of probation, the normal ones and the specific ones?

A. Yes, I did.

Q. Is it customary in your experience with your pro-

bationers to meet with them from time to time? A. Yes,

it is.

Q. What’s your own practice in that regard? A. I

am involved in the supervision of clients who are on proba-

tion, monitoring behavior, referring to community ser-

vices or any outside needed services, and monitoring that,

also.

Q. In regards to Marshall Murphy, did you make at-

tempts to meet with him on aregular basis? A. Yes.

Q. Did you have a particular schedule that you would

meet? A. Yes. Primarily it was once a month.

Q. Where did those meetings normally take place?

[8] A. Normally in the office, in my office.

Q. That's located in this building? A. Yes.

Q. How were those meetings set up? A. Marshall

was required to contact me once a month by telephone and

set up an appointment with me.

C-6

Q. Did he do that from the beginning in September

or October of 1980? A. Yes, with a couple of exceptions

he did.

Q. Did that continue on through the time that he was

involved in the Alpha House program? A. Pardon me?

Q. Would those meetings continue during the time

ihat he was involved in the Alpha House program?

A. Yes.

Q. At these periodic meetings at your office, without

the details, what normally would you discuss? A. We

would discuss any changes that had occurred in his situa-

tion, his life situation, since I had last met with him,

his progress at Alpha House. He discussed his employment

quite often, many problems that arose with that, or with

personal relationships.

Q. Between September of 1980 and September of

1981, that one year period of time, do you know how

many times—how many such meetings you had with

Marshall Murphy? [9] A. Twelve. Twelve in-office

meetings.

Q. All right. So my mathematics tells me that averages

outtooneamonth? A. Yes.

Q. Besides the in-office meetings, what other contacts

did you have with him in that period of time? A. Tele-

phone contacts and field contacts which were at Alpha

House when we met, also with Tim O’Brien, the director

of Alpha House.

Q. As a part of your job as Marshall Murphy’s pro-

bation officer, were you monitoring his progress at Alpha

House? A. Yes.

Mr. Lynn: Your Honor. may we approach the bench

for a moment?

C-7

(Discussion off the record.)

By Mr. Lynn:

Q. Ms. Widseth, at some time did you become aware

that Marshall Murphy was no longer involved in the treat-

ment program at Alpha House? A. Yes, I did.

Q. When did that happen? A. I received a tele-

phone call from—

Mr. Wernick. Excuse me, Your Honor, may we ap-

proach the bench?

[10] TheCourt: Yes.

(Discussion off the record.)

The Court; The direct response to the question isn’t

how you found out or by whom—I think the question is

when you found out. Can you tell us that’

The Witness: Yes. I believe it’s July 31, 1981. Either

July 31 or July 30. I can’t read my writing very clearly.

By Mr. Lynn:

Q. I take it you learned at that point that Marshall

Murphy was no longer involved in the program at Alpha

House? A. That’s correct.

Q. What action did you take, then, having learned

that? Perhaps I can rephrase it. Was any sort of order for

arrest and detention or probation violation brought

about? A. Wo, there was not. I have a letter, a copy

of a letter, written to Marshall on July 14 requesting him

to contact me immediately regarding the absence of his

participation in Alpha House. I probably found out about

his non-participation in Alpha House prior to July 31

since the letter was dated July 14.

C-8

Q. You wrote him on the 14th of July and asked him

to contact you about this situation? A. Right.

Q. Didhecontact you? [11] A. Yes, hedid.

Q. When was the next contact? A. He telephoned

me—lI don’t have the telephone—the date of the tele-

phone conversation recorded, but we did meet in the of-

fice July 21. 1981. The day is July 3, 1981, that I found

out about his lack of participation in Alpha House.

Q. All right. So then you met with him on July 21, is

that correct? A. That’s correct.

Q. At that point was any action taken regarding his

probationary status? A. No, there wa; not.

Q. After that meeting or at any time after July the

21st, did he return back to Alpha House or begin again

atthat program? A. No, he did not.

Q. Now, I'd like to ask you about September the

28th of 1981, move ahead a few months. Did you meet

with Marshall Murphy that day? A. Yes, I did.

Q. Let me ask you, between the meeting you indica-

ted you had July 21, ’81, to discuss Alpha House and

your meeting of September 28, were there any other meet-

ings with Marshall Murphy? [12] A. Yes, there

were.

Q. Howmany? A. One.

Q. Whenwasthat? A. September 11, 1981.

Q. All right. Let me focus if we can on the meeting

of the 28th of 1981. Where did that take place?

A. That was at my office, also.

Q. Who was there when you met with Marshall Mur-

phy? A. Just Marshall and myself.

Q. What did you discuss with Marshall Murphy in

chat meeting the 28th of September, ’81? A. I discussed

C-9

with him information that I had received regarding his

admission to a rape and murder which occurred several

years prior to that.

Q. I take it you confronted Marshall with that infor-

mation. A. Yes, I did.

Q. How did he respond to that? A. He became

very angry that that information had been provided to me.

Q. Did he say anything further about the incident it-

self? A. Yes, he did.

Q. What did he tell you about that? [13] A.

Marshall claimed that the false imprisonment incident

which he was on probation for and the past rape and

murder were unrelated as he did not commit the false im-

prisonment offense, and at the time that the rape and

murder had occurred he was using drugs quite heavily.

He said that they were not related because he was no

longer using drugs, and he had been straight for quite

some time.

Q. Why were the two of you discussing the relation-

ship between those two events? A. I had expressed

concerns to Marshall that with the new information that I

had received that his actions in the false imprisonment

offense and actions in the rape and murder that he had

admitted to were strongly related behaviorally and that

that needed to be dealt with continued treatment.

Q. Was that relationship important to you as his pro-

bation officer on the false imprisonr. ent charge?

A. Yes, it was.

Q. Did you discuss with Marshall Murphy on Septem-

ber 28 the rape-murder incident that happened some sev-

eral years prior? A. Yes.

Q. Do you recall if you can what you asked him and

C-10

what he told you about that? A. Yes. Marshall said

that after he was released from [14] the service he was

in an exclusive relationship with a woman; that he dis-

covered that this woman was seeing another man at the

time that they were supposedly in the exclusive relation-

ship. He said that the other boyfriend also found out that

she was seeing Marshall at the same time. He apparently

beat the woman up—

Q. When you say he, who do you mean? A. The

other boyfriend. The girlfriend came to Marshall’s house,

and he described her as being beat up very badly and

bleeding, and he said that he was so disgusted with her

behavior up to that point that he did not allow her into

his house. He said his roommate came home shortly

afterward. saw the girl sitting on—sitting in front of the

house, and came in the house, asked Marshall why he

didn’t let her in. and Marshall said he didn’t want any-

thing to do with her.

The roomate apparently, according to Marshall, let the

girl in, and there wasn’t much else said about that par-

ticular incident. Marshall then went on to say that as time

passed he became more despondent over the breakup

of the relationship, and it was affecting him emotionally.

He was using drugs quite heavily. He said that one night

he went to a bar with one of his ex-girlfriend’s best friends

named Sherrie—I am sorry, not that he went to the bar

with her but that he left the bar with Sherrie and another

woman named Pam.

[15] Q. Do you recall what he told you about what

happened after they left the bar? A. He said that they

were walking home, the three of them, Pam, Sherrie and

Marshall; that Pam eventually left the two of them and

C-11

walked her own way. Marshall continued to walk with

Sherrie. He said that he attempted to make out with her

but that she was not interested, and she continued to re-

sist. He said that at that time he had a knife in his pocket

which he pulled out, and he forced her into an alley.

He said that in the alley he raped her. After he raped

her he stood up. When he stood up he looked back at her.

He said that she looked so scared that he then killed her.

I asked him how he killed her, and he said that he

strangled her with his hands

Q. Do you recall any further conversation about what

happened that day? A. He said that he left the area,

went to the store, purchased some cigarettes, went home.

and went to bed.

Q. Can you describe Marshall Murphy's emotional

state as you viewed him that date when he was telling you

this? A. It wasn’t until later on in our conversation

when Marshall began crying. Otherwise, during that period

of time when he was discussing the rape and murder in-

cident with me, he appeared to be calm.

Q. Did he state to you during that conversation how

he [16] felt about that event? A. Yes. He said that

he felt he had committed the ultimate sin.

Q. At the time that Marshall Murphy came to your of-

fice that day, September 28 of ’81, before you got into the

conversation you have just discussed, did you tell him

what you wanted to talk tohim about? A. Yes, I did.

Q. Was he aware of what you wanted to talk to him

about? A. Yes, he was.

Q. Did he ever refuse to answer any of your questions?

A. No, he didn’t.

Mr. Lynn: I have nothing further, Your Honor.

C-12

The Court. Mr. Wernick?

(Defendant's Exhibits 1 and 2 marked for identification.)

CROSS-EXAMINATION

By Mr. Wernick:

Q. Miss Widseth, I am showing you a one-page docu-

ment marked for identification as defendant’s exhibit 1.

Can you identify what that is? A. Yes, that is the de-

fendant’s formal probation [17] order.

Q. That is an order signed by Judge Durda, and it

lists the conditions of his probation? A. Yes, that’s cor-

rect.

Q. And then showing you a document marked for

identification as defendant’s exhibit 2, can you identify

what that is? A. That is the defendant's temporary pro-

bation order.

Q. And that is a document signed by Marshall Mur-

phy? A. Correct.

Q. And this document also sets forth the conditions

of Marshall's probation? A. That's correct

Mr. Wernick’ Your Honor, I will offer defendant's

exhibits 1 and 2.

Mr.Lynn: Ask just one question, Your Honor?

The Court: Certainly.

Mr. Lynn’ Miss Widseth, these two documents

marked as defense exhibits 1 and 2, are they the only two

documents setting out the conditions of probation that

were shown to Marshall Murphy?

The Witness: Yes, that’s correct.

Mr.Lynn: No objection

The Court: Received.

By Mr. Wernick:

C-13

[18] Q. Ms. Widseth, on the document that you

have which is signed by Marshall, exhibit 2, that docu-

ment—I am looking in the second paragraph—describes

your job as the official representative of the court. Is

thattrue? A. Yes.

Q. And then it tells him that he is ordered to obey

the conditions that are set forth. A. That’s correct.

Q. And one of those conditions is be truthful to

your probation officer in all matters, is that true?

A. That's correct.

Q. And another condition is to report to his probation

officer as directed by you. A. That's correct.

Q. If Mr. Murphy would fail to abide by these condi-

tions, that would be grounds for you to seek an arrest and

detention order from Judge Durda, is that true?

A. That's correct.

Q. Were you present at the sentencing, at Marshall

Murphy’s sentencing, on the false imprisonment charge?

A. No, I was not.

Q. Now, uf to the time that Mr. Murphy saw you in

July, he would call you on the phone on his own initiative

and make an appointment to see you, is that true?

A. That's correct, for the most part.

[19] (Defendant’s Exhibit 3 marked for identifica-

tion.)

By Mr. Wernick:

Q. Showing you a one-page document marked for iden-

tification as defendant’s Exhibit 3, can you identify what

that is? A. It is a letter I wrote to Marshall on July 14,

1981. requesting him to contact me immediately.

C-14

Q. And that is the letter which you wrote as a result

of receiving information about his attendance at Alpha

House? A_ That's correct.

Mr. Wernick: I would offer defendant's Exhibit 3.

Mr.Lynn: No objection, Your Honor.

The Court: All right.

Ry Mr Wernick:

Q. In that letter you informed Mr. Murphy that fail-

ure to respond to the letter will result in an immediate re-

quest for a warrant. Isthattrue? A. That's true

Q. To the best of your recollection, Ms. Widseth, is

that the first time that you had written Mr. Murphy such a

letter to have him come talk to you? A. I also wrote a

,etter on September 24 asking him to contact me.

Q. Okay. Is the July letter the first letter that [20]

you had written? A. Yes.

Q. Now, at the meeting you had with Mr. Murphy

in July in response to that letter, did Mr. Murphy tell you

that he did not want to do further treatment? A. That's

correct

Q. And the result was that you told him you would not

violate his probation because he seemed to be doing okay

generally? A. That's right.

Q. Now, at that point you still had the authority to

change vour mind and order more treatment if further

information came to you as you thought it warranted

treatment. A. That wou'd be questionable.

Q. When you saw Mr. Murphy on September 11, was

that a meeting that he set up on his own? A _ Yes, it

was

Q. Let me ask you this, Ms. Widseth: On October 2

of 1981, did you cause an arrest and detention warrant

to be issued against Mr. Murphy? A. That's correct.

C-15

Q. And one of the allegations that you have as

grounds for this arrest and detention warrant is that al-

though defendant pursued treatment at Alpha House, he

was terminated [21] for failure to actively work on a

problem area and to comply with the terms of the

group. Was that the grounds for the arrest and detention

warrant that you alleged? A. Yes.

(Defendant's Exhibit 4 marked for identification.)

By Mr. Wernick.

Q. Showing you another one page document marked

for identification as defendant's Exhibit 4, will you iden-

tify what that is? A. That is a letter I wrote to Marshall

Murphy on September 24, 1981, requesting him to con-

tact me upon his receipt of the letter.

Q. And is this the letter you wrote in response to the

information you had received that you described earlier?

A. Yes.

Mr. Wernick: I will offer defendant’s Exhibit 4.

Mr.Lynn: No objection, Your Honor.

The Court’ Received.

By Mr. Wernick:

Q. Ms. Widseth, you testified earlier that you had re-

ceived some information about what Marshall had been say-

ing,isthattrue? A. Yes. |

Q. That was on September 22, 1981, that you

f22] received thatinformation? A. Yes.

Q. Now, at the time you were told about that infor-

mation, were you also told that Mr. Murphy was not ar-

rested for lack of evidence? A. Yes.

Q. On September 24, did you go to your supervisor

and have the discussion with him about what you should

do with this information? A. Yes.

C-16

Q. Did your supervisor tell you and did you decide

that you were obligated to report this information to the

police? A. That's correct.

Q. Did you also decide on that date that you would

be informing Marshall of this decision? A. Yes.

Q. On September 28 then, that is the day you talked

with Marshall in your office, correct? A. Correct.

Q. Prior to Marshall making this statement about the

murder, you told him the substance of the information

you had received. A. Yes, that’s correct.

Q. Did you also tell him that although you had

[23] previously allowed him to continue on probation

without treatment, that you now strongly felt he needed

further treatment? A. That's correct.

Q. Would it be fair to say that Marshall’s response

was at that time that he became angry with you?

A. That's right.

Q. Did he tell you that he felt like calling an attorney?

A. Yes, that’s correct.

Q. And when Marshall told you that he felt like cal-

ling an attorney, your response was that he would have to

do that outside of the office, is that true? A. That he

would have to deal with it outside of the office, that’s cor-

rect.

Q. You told him that he would have to deal with it

vutside the office because your main concern at this time

was another issue, the fact being that there was two re-

lated incidents. Is that what you said? A. “Yes, that’s

correct.

Q. The subject of your conversation with Mr. Murphy

from your point of view, from what you told Mr. Murphy

rather, was that you thought it was necessary to talk about

C-17

whether he needed more treatment. Is that a fair state-

ment? [24] A. That's correct.

Q. Now, before Mr. Murphy—

Mr.Lynn: Your Honor, may I have a moment?

The Court: Take a moment, certainly, go ahead.

(Discussion off the record.)

The Court: We will take a five-minute recess, and

then when the attorneys are free I will see them in

chambers.

(Recess.)

The Court: Go ahead, Mr. Wernick. Sorry for the in-

terruption.

By Mr. Wernick:

Q. Ms. Widseth, before Mr. Murphy started talking

about the murder case, he first talked to you about the

false inprisonment case, is that true? A. That's correct.

Q. And before that you had told him that you thought

these two incidences were related. A. That's right.

Q. And you also testified that he told you essentially

that he was innocent of that charge, the false imprison-

ment. A. Yes.

Q. Did you believe him when he said that? A. No,

I did not.

Q. And did you confront him about that?

[25] A. Yes, I did.

Q. Did Marshall persist with his innocence after you

had confronted him about that? A. Yes, he did.

Q. Now, was your reason—strike that. When I use

the term confront, you asked him questions about it, is

that true? A. About the false imprisonment charge,

yes.

Q. And then it was—well, let me ask you, Mrs. Wid-

C-18

seth, what does it mean to confront someone when you

are counseling him? A. What does it mean?

Q. Yes, when you say confront. A. J reviewed

the—as Marshall and I were sitting there, I reviewed the

factual information regarding the offense and the presen-

tence investigation and the police report. And I asked him

about specific incidences that were reported by the victim

and statements that he had given regarding the offense.

Q. You were trying to show the inconsistencies in his

story. Would that be a fair statement? A. Not in his

story; in his story as compared to the victim’s.

Q. Would it be fair to say that you were pushing him

on that point, whether or not he was innocent?

[26] A. That’s correct.

Q. And it was after that that he started talking about

this murder case, isthattrue? A. Yes.

Q. And it was after he talked about the murder case

that you first told him that you thought it was your obliga-

tion to go to the police. Is that true? A. That’s correct.

Q. At that time did you encourage Marshall to turn

himself in to the police? A. Yes, I did.

Q. And Marshall said he didn’t want to do that. Is that

true? A. No.

Q. Did Marshall tell you he wanted time to think

about whether or not he wanted to do that? A. That's

correct.

Q. And you gave him permission to think about that.

A. Yes.

Q. Did Marshall at that time tell you that he knows

you must really care about him because you were giving

him permission to think about it as opposed to just turning

him in right then and there? A. No. That's not correct.

C-19

Q. Well, did he say to you—let me rephrase it—

{27] that he thought you must really care about him to

have him come in and talk about this because you could

have just picked up the phone and started dialing the po-

lice? A. That’s correct.

Q. How long after your interview with Mr. Murphy

did he finally leave your office? A. After my interview

with him?

Q. Yes. A. Immediately.

Q. Mr. Murphy’s condition at the end now when you

are talking about this is that he was crying, is that right?

A. That's right.

Q. Hehadlosthiscomposure? A. That’s correct.

Q. Isn't it true that Mr. Murphy had to stay at your

office for a period of a few minutes to compose himself

before he left? A. I would say approximately five min-

utes while we continued to talk, yes.

Mr. Wernick: Nothing further.

Redirect Examinetion

By Mr. Lynn:

Q. Ms. Widseth, again on the 28th of September the

interview with Marshall Murphy was in your office, cor-

rect? [28] A. Correct.

Q. Was the door to that office locked? A. No, it

wasn’t.

Q. Did you have any sort of restraint on Marshall Mur-

phy of anykind? A. No.

Mr. Wernick: Objection, legal conclusion.

The Court: Well, I guess I don’t know what restraint

means there either.

C-20

By Mr. Lynn:

Q. Was he handcuffed in any way? A. No, he

wasn’t.

Q. Was he free to leave if he chose to get up and walk

out?

Mr. Wernick’ Objection, legal conclusion

The Court: Well, in your opinion.

By Mr. Lynn:

Q. Was he free to get up and leave if he chose to?

A. Yes, he was.

Q. There were just the two of you present during that

conversation? A. Correct.

Q. Now, you indicated that the first part of your con-

versation or much of it had to do with this false imprison-

ment charge. [29] A. Yes.

Q. At some point you told Marshall Murphy that you

were obligated to go to the police about the rape-mur-

der situation. A. Right.

Q. Was that before or after he told you the details of

that offense? A__ I believe it was after.

Q. You indicated that—back up again. Before you

talked to Marshall Murphy on that date, had you had any

contact with any police officer about the Sherrie Cole

case, the rape-murder case? A. No, I had not.

Q. Did you have any of the police reports or files or

autopsy or anything about that case? A. No, I hadn't.

Q. You indicated that at one point Marshall Murphy

made mention of he ought to see alawyer? A. Yes.

Q. AmI correct that that was in the context—

Mr. Wernick: Objection, leading.

The Court: Well, it sounded like it would have been,

but I guess we won’t know unless he asks it. Well, go ahead

and ask it.

C-21

By Mr Lynn: ;

[30] Q. Was that in the context of a civil lawsuit?

Mr. Wernick: Well, objection, leading and a legal

conclusion.

The Court: Well, I don’t have the whcle question

before me.

Mr. Lynn: I will rephrase it, Your Honor.

By Mr. Lynn:

Q. You indicated that Marshall Murphy became

angry, correct? A. Correct.

Q. He said something about a lawyer, is that correct?

A. That’s correct.

Q. Do you recall specifically what he said? A. Yes,

he said that he was so angry that the information about

his admission to the rape and murder had been given to me

that he felt like calling a lawyer. He felt that that violated

his confidentiality.

Q. You also indicated that towards the end of the

conversation you encouraged Marshall Murphy to turn

himselfin. A. That’s correct.

Q. Do you recall what his response to that was? You

indicated he wanted some time, correct? A. That’s

right.

[31] @Q. Do you recall what you told him at that

point? A. I told him that it was my legal responsibility

to report the information to the police regardless of his

decision, whether or not he would turn himself in

Q. Did he say anything about that back to you?

A. Yes. He did say to me that he understood that I

would need to do that, and that’s when he also went into

his statement about he felt I really cared about him be-

cause he knows I could have just picked up the phone

and dialed the police.

C-22

Q. Do you recall any conversation about whether or

not he would talk to the police himself? A. No.

Q. Do you recall—or did you prepare some, at the

time of these conversations, some handwritten notes?

A. Yes, I did.

Q. Did you bring those with you today? A. Yes.

Q. Let me call your attention to the fourth page of

those notes towards the very end, three or four lines up,

were those notes prepared at the time or shortly after the

time that you talked to Marshall Murphy about this?

A. The following day.

Q. Were they accurate as best you recall as to what

was said between the two of you? [32] A. Yes.

Q. Would it refresh your recollection if you could re-

view the notes regarding my question? And I will ask you

to read the last six or eight lines of your notes.

A. Yes.

Q. Do you recall how he responded now?

A. When I told him it would be my legal responsibil-

ity to report the matter to the police, he said that he under-

stood that but that it would just be my word if he didn’t

confess to the police. Was that right? And I told him that

to the best of my knowledge that would be correct.

Q. Calling your attention to defendant's Exhibit 4,

your letter of September 24 of 1981, did that letter con-

tain any threat to seek a warrant if Mr. Murphy did not

come to your office?

The Court: Well, those letters speak for themselves.

I need no further testimony on that point.

Mr.Lynn: Nothing further.

The Court: Any further testimony of this witness?

Mr. Wernick: Yes, Your Honor, a couple.

The Court’ Go ahead.

C-23

Recross-Examination

By Mr. Wernick:

Q. Ms. Widseth, about this question about a lawyer,

in [33] your job as a probation officer you meet

many people who have legal problems, I take it. Is that

true? A. That's correct.

Q. And oftentimes people who have legal problems

with the criminal law have other legal problems as well,

whatever they may be. A. Yes.

The Court: I am sorry. I wish we could focus in here

on just some questions relative to a Rasmussen hearing.

Mr. Wernick: All right.

By Mr. Wernick:

Q. Well, would you agree, Ms. Widseth, that often-

times people who have legal problems, they don’t know

what the legal problems are, but they know they have legal

problems?

Mr.Lynn: I guess I will object. It’s irrelevant.

The Court: It’s vague. I don’t know what it’s leading

to, and—

Mr. Wernick: I will withdraw the question.

The Court: All right. This court is going to, in as-

signing the issues involved here, use some of its ten years

experience as a trial judge in ascertaining the relation-

ship of a probationer and a probation officer, and I

would hope the two attorneys could have a small amount

of confidence in the court’s ability to do that. And I surely

[34] don’t know of any questions that are going to as-

sist the court in that process, or as a certainty I haven't

heard any yet.

Mr. Wernick: I have nothing further.

Mr.Lynn: I have nothing further, Your Honor.

C-24

The Court: All right. You can step down. Thank you.

Well, I am sorry, Ms. Widseth. So that I understand this

fully, when you sent for the defendant and asked to speak

to him, you knew, did you not, that you were going to

speak to him on the topic of information you heard about

the possible rape-murder.

The Witness: Yes.

The Court: And do I understand from your testimony

that you also knew in advance that you were going to pass

that information on to the police?

The Witness: Yes.

The Court: Did you advise him in advance of that fact

before questioning him?

The Witness: No, I did not.

The Court: Okay, Thank you. You can step down.

Gentlemen, will you approach the bench, please?

(Discussion off the record.)

The Court: All right. Does the state have any further

witnesses?

Mr.Lynn: No, Your Honor.

[35] The Court: All right. It's my understanding

the defense is going to proceed and call a witness, and

given the hour and the fact that the defense does not wish

to interrupt that testimony, and since it’s about two min-

utes short of our normal adjournment time, we will take

our adjournment for the day.

I'd ask the attorneys and the defendant to be present

at 9:15 tomorrow morning. and Id ask the jail to please

have him here ready to go at 9:15, and with that we will

stand adjourned until 9:15 tomorrow morning.

(Court was adjourned until 9:15 the following day.)

C-25

[36] Marshall Murphy

(January 13, 1982, 9:15 a.m.)

Mr. Wernick’ Your Honor, I will call Marshall Mur-

phy.

Marshall Murphy, called as a witness, being duly sworn,

testified as follows:

Direct Examination

By Mr. Wernick:

Q. Mr. Murphy, how oldare you? A. 29.

Q. Prior to being arrested on this offense, what was

your occupation? A. I was a broiler chef at the Regis-

try Hotel.

Q. How long had you been employed there?

A. Three years.

Q. Mr. Murphy, directing your attention to September

28, 1981, did you go see Mara Widseth, your probation

officer,on that date? A. Yes, I did.

Q. What caused you to go see her on that date?

A. I received a letter in the mail stating that she

wanted to talk to me.

Q. And what did you think would happen if you—

let [37] me ask you this: what did the letter say that

she wanted to talk about? A. She said—

Mr.Lynn: The letter is in evidence.

Mr. Wernick: It’s preliminary—

The Court: Go ahead and answer it.

A. Talk about further treatment plans.

Q. What did you think would happen if you did not

respond to that letter? A. Well, I would have been vio-

lated.

C-26

Q. When you went into the office then on September

28, what did you think you were going to be talking about?

A. Further treatment plans.

Q. What was your reaction when your probation of-

ficer told you about the information she had received that

we talked about yesterday? A. I was, you know,

shocked and angry.

Q. Did the subject of an attorney come up? A. I

asked her if—well, I said I feel like I should have an attor-

ney present.

Q. Why did you feel like you should have an attorney

present? A. Well, the subject matter we were talking

about, little flags went up in my head, and you know, I

felt like I needed an attorney at the time.

[38] Q. And what was Mara’s demeanor right after

you said that? A. She seemed like kind of angry and

trustrated.

Q. What did she say to you? A. She said we

didn’t have to worry about having an attorney there now.

We had more important things to talk about.

Q. What was that she wanted to talk about?

A. About the case at hand.

Q. Did you feel you were free to leave at that time?

A. No, I didn’t.

Q. What did you think would happen if you left at

that time? A. Well, if I would have got up and walked

out of the office, I would have been violated.

Q. Did you want to talk to her about further treat-

ment at that time? A. No.

Q. What were your feelings about going to treatment

at thattime? A. I, you know, I have been involved with

treatment for the past three years, and I was beginning to

C-27

feel like I was, you know, institutionalized after awhile—

not three years, but since "77

Q. Why did you then continue to talk to her at that

[39] time? A. She wanted to talk to me.

Q. What was your physical condition at that time?

A. Iwas tired.

Q. How long had you been up? A. About 24

hours.

Q. What time did you get to Miss Widseth’s office on

September 28? A. 10a.m.

Q. What did you do the previous night? A. I

worked the graveyard shift.

Q. What time did you start work? A. 10:00 o'clock.

Q. And what time did you get off work? A. 6:00

o’clock in the morning.

Q. What reason did Mrs. Widseth give you for say-

ing that you needed more treatment? A. She was

looking at the—my false imprisonment charge and the

murder as being related.

Q. Which of those two incidences did you talk about

first? A. The false imprisonment charge.

Q. Just briefly. what did you say about that?

A. Well, I was trying to tell her—you know, she was

bringing it up, and I was trying to tell her, you know,

about [40] my innocence and that, you know.

Q. What was her reaction to that? A. She was

mad.

Q. How did the subject change from that to the other

case, the murdercase? A. She brought it up.

Q. What did she say? A. She wanted me to talk

more about that.

Q. At that time did it occur to you that she was going

C-28

to go to the police with what you said? A. No, it

didn’t.

Q. When did you first know she was going to go to

the police? A. After we were done talking about it, she

mentioned that it was her obligation.

Q. What did she ask you todo? A. She was trying

to convince me to turn myself in.

Q. And what was your response? A. I told her I

couldn't do that.

Q. How long after you left Mrs. Widseth’s office—

how long after that did you contact an attorney?

A. That evening.

Q. How many attorneys did you call that evening?

A. Three.

Q. When did you next talk to Mrs. Widseth?

[41] A. Not the following day but the day after.

Q. And what did you tell her? A. I told her that

my attorney advised me not to turn myself in.

Q. Mr. Murphy, at the time you started talking about

this. did you know you had the right to remain silent at

that time? A. No, I didn’t.

Q. Did you know you had the right to consult with an

attorney at thattime? A. No, I didn’t.

Mr. Wernick: I have nothing further.

Cross-Examination

By Mr. Lynn:

Q. Mr. Murphy, you had been dealing with Mara

Widseth as your probation officer for about a year at ©

this time, as of September of 81? A. Correct.

Q. During that time you had met with her in her of-

fice at least, what? Adozentimes? A. Yeah.

C-29

Q. Plus you had spoken to her on the phone a dozen

times? A. Yes.

[42] Q. How far did you go in school? A. I got

a G.E.D., and I have a certificate for cook chef program.

Q. Where did you get that? A. Brooklyn Center

Suburban Hennepin North Campus.

Q. The Vocational Technical School? A. Right.

Q. You were also in the military, were you not?

A. Yes, I was.

Q. What was your job there? A. I was in the com-

vat engineers, but I was a bus driver.

Q. Now, you indicated that over that year’s period

of time when you would be dealing with Mrs. Widseth

many of those interviews were in her office, right?

A. All of them were.

Q. Allofthem were? A. Except for one.

Q. Some of those interviews, did you call her and come

inonyourown? A. Yes.

Q. And some of those interviews were in response to

aletterby her? A. Yes.

Q. You have been in trouble with the law before,

[43] have younot? A. Yes, I have.

Q. You have been through the court system a couple

cf times, haven’t you? A. Yes, I have.

Q. And you have dealt with police officers, courts,

prosecutors and defense lawyers on several occasions over

the past several years? A. Yes, I have.

Q. In July of last year, 81, you were terminated or

at least left the Alpha House program, is that correct?

A. That's correct.

Q. And at that time you met with Mara Widseth, cor-

rect? A. Yes, I did.

C-30

Q. She did not revoke your probation based upon

that, didshe? A. No.

Q. She was concerned about—at that time she felt you

were Okay on yourown? A. Yes.

Q. When you went to see her on the 28th of Septem-

ber, it was to discuss the subject of treatment once again,

correct? A. Yes.

[44] Q. And in fact, you did discuss further treat-

ment with Mara Widseth on that occasion, the 28th.

A. We touched on it.

Q. She expressed to you her concern between the re-

lationship of the old case, the one involved here, and

your false imprisonment case that you were on probation

for? A. Yes.

Q. She told you that it was her feeling you still

needed more treatment? A. Yes.

Mr.Lynn: Ihave nothing further, Your Honor.

Redirect Dxamination

By Mr. Wernick:

Q. Mr. Murphy, how many other probation officers

nave you had besides Mara Widseth? A. Two.

Q. Has anything like this ever come up in your ex-

perience with a probation officer? A. Would you clar-

ify on that?

Q. Have you ever had a probation officer go to the

police and tell them what you had been saying to her?

A. No.

Mr. Wernick: I have nothing further.

Mr.Lynn: I have nothing further, Your Honor.

C-31

[46] CERTIFICATE

I, Claudette Ask, one of the official court reporters of

the Fourth Judicial District of the State of Minnesota, do

hereby certify that the foregoing is a true and correct

transcript of my stenotype notes taken at said time and

place.

/s/ Claudette Ask

Official Court Reporter

Defendant's Exhibit 1

STAY OF EXECUTION AND PROBATION ORDER

On August 19, 1980, the above-named defendant was

duly convicted of the crime [of] false imprisonment and

thereafter [, on] September 22, 1980, was sentenced for

commitment to the Minnesota Correction Authority, Still-

water, Minnesota, for a period not to exceed 15 months.

And the Court being of the opinion that by reason of

the character of defendant and the instances of this case

it will be for the best interest of defendant and the best

interest of justice [that] execution of sentence be stayed

for the period of three (3) years and upon the condition

this order hereinafter specified.

NOW THEREFORE IT IS ORDERED that the execu-

tion of sentence for the period of three (3) years is hereby

stayed and defendant is placed on probation until Septem-

ber 21, [1983,] and assigned to the Hennepin County De-

partment of Court Services for supervision.

Said stay and probation are granted, however. upon the

express condition that during the continuance of said stay

defendant shall observe the following order, rules and reg-

ulations

C-32

Be truthful to your Probation Officer in all matters.

Keep your Probation Officer informed at all times of

your place of residence and employment, make no

change in these without the knowledge and consent of

your Probation Officer.

Do not leave the State of Minnesota without the con-

sent of your Probation Officer.

Report to your Probation Officer as directed.

Do not incur any financial indebtedness without the

knowledge and consent of your Probation Officer.

Obey all local ordinances and state and national

laws.

In the event you are arrested by any law enforcement

office, you shall immediately notify probation officer

and report the matter.

Comply strictly with any additional requirements

that may be imposed by the Court or your Probation

Officer during the term of your probation.

Pursue treatment at Aipha House.

NOTE: Any person convicted of a felony loses his civil

rights, including the right to vote in this state

the right to hold public office until the stay of

sentence expires.

It is unlawful for any person convicted of a

felony to possess, use or receive any firearms.

The Public Law 90-618, Gun Control Act of

1968

Should defendant vioiate any of the conditions here-

in specified, or should it hereafter satisfactorily appear that

sentence should be enforced, said stay may at any time

prior to expiration [be] revoked and sentence executed.

C-33

DATED:

P.O.: Mara H. Widseth (348 5269)

CHESTER DURDA

Judge of the District Court

Defendant’s Exhibit 2

DEPARTMENT OF COURT SERVICES

ADULT PROBATION DIVISION

DISTRICT COURT

FOURTH JUDICIAL DISTRICT

Minneapolis, Minn. 55487 9-22-80

To Marshal! D. Murphy

As permitted by law, the Court is granting you the

privilege of probation in place of imprisonment or other

punishment. It does so because it believes that you are able

to overcome the difficulties which brought about your ar-

rest.

The Court will be kept informed regarding your prog-

sess through your Probation Officer, who, as the official

representative of the Court, will try to aid you in every pos-

sible way to justify the confidence which the Court has

placed in you.

Probation is an opportunity for you to prove to the

Court that you can and will conduct yourself as a good

citizen, without necessity of penal confinement. For the

present you are only conditionally released. If you com-

ply with the conditions of your probation you may expect

to be discharged at the expiration of the period stated. If

you fail to comply with the requirements you may be re-

turned to Court at any time for further hearing or com-

C-34

mitment. It is hoped that you will want to earn your re-

xease in the shortest possible time.

It will be necessary for you to obey strictly the following

conditions:

BE TRUTHFUL to your Probation Officer in all

matters.

Keep your Probation Officer informed at all times of

your place of residence and employment, and make

no change in these without the knowledge and con-

sent of your Probation Officer.

Report to your Probation Officer as directed.

Do not leave the State of Minnesota without the con-

sent of your Probation Officer.

Do not incur any financial indebtedness without the

knowledge and consent of your Probation Officer.

Obey all local ordinances and state and national

laws.

Comply strictly with any additional requirements that

may be imposed by the Court and Probation Office

during the term of probation.

It is unlawful for any person convicted of a felony

to pursue use or receive any firearms. Title 7, Public

Law 90-618, Gun Control Act of 1968.

In the event that you are arrested by any law enforce-

ment officer you shall immediately notify your probation

officer and report the matte.

If your conviction is for a felony you have lost the right

to vote and hold public office until the stay of sentence

expires.

C-35

You are to pursue treatment—Alpha treatment.

I have read and received a copy of the above instructions.

I have read and fully understand the above instructions.

/s/ Marshall D. Murphy

/s/

Probation Officer

Defendant’s Exhibit 3

DEPARTMENT OF COURT § &VICES

DISTRICT COURT PROBATION

A-1100 GOVERNMENT CENTER

MINNEAPOLIS, MINNESOTA 55487

July 14, 1981

Mr. Marshall Murphy

4100 12 Avenue South

Minneapolis, Minnesota 55407

Dear Marshall:

In view of your recent Alpha House attendance difficul-

ties, I am requesting that you contact me immediately.

Failure to do so will result in an immediate reauest for a

warrant.

Mara M. Widseth

Probation Officer

348-5269

MW/gl

C-36

Defendant’s Exhibit 4

DEPARTMENT OF COURT SERVICES

DISTRICT COURT PROBATION

A-1100 GOVERNMENT CENTER

MINNEAPOLIS, MINNESOTA 55487

September 24, 1981

Mr. * ‘arshall Murphy

4140 “3 Avenue South

Minneajwi's, Minnesota 55406

Dear Marshall:

To further discuss a treatment plan for the remainder of

your probation, I am requesting that you contact me upon

your receipt of this letter to set an appointment.

Mara Widseth

Probation Officer

348-5269

MW/gl

D-1

Appendix D

APPEARANCE

DC File 79037

CA File 81-2515

The above entitled matter came duly on for hearing

before the Honorable Jonathan Lebedoff, one of the

Judges of the above-named Court, on September 23, 1982.

APPEARANCES:

Robert Lynn, Assistant County Attorney, appeared on

behalf of the State.

Mark Wernick, Esq., appeared on behalf of the de-

fendant.

The Defendant was present.

Claudette Ask, Reporter.

[2] Mr. Lynn: This is the matter of State of Min-

nesota versus Marshall Donald Murphy, District Court

File 79037, County Attorney’s File 81-2515. I am Ro-

bert Lynn, Assistant Hennepin County Attorney. Mr.

Murphy is present with his attorney Mr. Mark Wernick.

We are before this Court this morning, Your Honor, be-

cause the defendant is charged by an indictment with mur-

der in the first degree. As the Court is aware, we had an

omnibus hearing in this matter surrounding a confession.

The Minnesota Supreme Court, having heard that issue as

certified, the questioning of the defendant, suppressed that

particular confession in a decision dated August 31 of

this year. 1982.

We are back before this Court then as a continuation

of that omnibus hearing which was held May 16 of ’82

to determine the remaining motions and the status of Mr.

Murphy.

D-2

I will inform the Court, as I have already, and counsel

that the State does plan to petition for writ of certiorari

to the United States Supreme Court for a review of the

Minnesota Supreme Court decision in this matter. I an-

ticipate that that process, should that petition be granted

and heard, will take well over one year, probably 18

months. perhaps more. That’s the time period we are

dealing with before we can proceed with this case

[3] any further.

The Court: All right. Of course, this case was special-

ly assigned to this Court for trial. The Court preparatory

to selecting a jury on the charge of murder in the first de-

gree had the so-called omnibus II hearing, and at that time

the Court dealt primarily with the admissibility into evi-

dence of the alleged confession of the defendant. This

Court obviously held that the confession was admissible,

as already indicated by the County Attorney.

That ruling was reversed by the Minnesota Supreme

Court last week and in a 7 to 2 vote they determined that

the confession was inadmissible.

This case is now, I believe—well, the Supreme Court

has ordered this case remanded to this Court, and we

have not yet received the original file back from the Su-

preme Court. However, the attorneys have asked for this

hearing, and I will now await any motions.

It’s my understanding that there is now going to be a

bail motion made.

Mr. Wernick: Yes, Your Honor, but first I think pro-

cedurally, Your Honor, I do have a motion to dismiss the

indictment pending before the Court for insufficient evi-

dence, inadmissible evidence before the grand jury. I re-

new the motion at this time expecting full well that

D-3

[4] the Court, if it were to grant the motion, would stay

‘ts position to allow the State to appeal, but for the record

I do renew that motion.

The Court: Mr. Lynn, do you wish to respond?

Mr. Lynn: Only to say this. Your Honor: that the

grand jury transcript as viewed now, taking out the sup-

pressed confession, there is insufficient evidence at this

point to proceed further with the prosecution.

The Court: All right. I appreciate the candor of the

County Attorney on that point. That fact is obvious to

this Court as well. The importance of the inadmissibility

or admissibility of the confession is total to the prosecution

of this case in this Court’s view.

This Court has reviewed the motion originally raised

at the omnibus hearing by Mr. Wernick, and we do feel

that given the inadmissibility of the confession, that there

is not remaining sufficient evidence to do other than grant

Mr. Wernick’s motion. Accordingly, at this time Mr. Wer-

nick’s motion to dismiss raised at omnibus hearing is

granted, The granting of that motion, however, is stayed

at this time pending a final determination by the United

States Supreme Court.

Is there anything further?

Mr. Lynn: Only, Your Honor, that pursuant to Min-

nesota Rules of Criminal Procedure 17.06, all the sub-

divisions, [5] I already have, but I will again serve

notice that we do plan to appeal this matter. The time

length is such that again, it will be at least a year and a

half, possibly longer, so we would ask for the stay to be in

effect until there is some determination by the United

States Supreme Court as to whether they are going to hear

this matter or not.

D-4

The Court: Yes. I thought my order staying the grant-

ing of Mr. Wernick’s motion encompassed the final de-

termination by the United States Supreme Court. And lest

there be any confusion about that, this Court will now

order that this stay be in effect until further order of this

Court.

Until such time as either party feels there is a determin-

ation by the United States Supreme Court, you can then

petition me to vacate the stay, but until such order the

stay is in effect.

Since we now have stayed this for a review of the

United States Supreme Court and apparently there is no

dispute about the fact there is an 18-month to two year

time frame there, and since I further understand that pur-

cuant to this matter the defendant is in a custodial setting,

I would await any motions relative to bail.

Mr. Wernick: Your Honor, as the Court knows. Mr.

Murphy is now on probation to Judge Durda. Mr. Murphy

[6] has been incarcerated for almost one year now not

unly as a result of the bail on the murder charge but also

as a result of an arrest and detention order from Judge

Durda. Earlier this week Judge Durda quashed the arrest

and detention order and told counsel that he was not re-

I am going to take no further action on that at this

point, but I do want this record to reflect, because I

haven’t made a record on this yet, that in my view the time

that Mr. Murphy spent in custody for Judge Durda does

count towards that sentence if the time were to come that

Judge Durda were to revoke his probation. But I am mak-

ing my record on that only.

T am now not objectiug to the fact that Mr. Murphy

D-5

stay on probation status, and I'd ask the Court to set bail

in the amount of $5,000 in addition to any other non-

monetary conditions of release that the Court Ceems appro-

friate.

The Court: Does the State wish to respond to that mo-

tion?

Mr. Lynn: Yes, Your Honor. As to Mr. Murphy's pre-

sent status, Judge Durda did not revoke, and that was

basically a joint request, anticipating that Mr. Murphy will

be on some sort of a bail status. It was my feeling I

would also like him under the supervision of [7] a

probation officer at least until September of °83 when he

gets off of probation to Judge Durda. Again, Your Honor,

we are operating under Rule 17 of the Rules of Criminal

Procedure which provide in a situation like this for the

Court to set a bail or make other conditions of release

pending this appeal.

Your Honor. the $5,000 figure that has been recom-

mended, I believe, by counsel in my view, combined with

a rather close supervision by the Department of Court

Services as bes they are able under the circumstances,

is a reasonable situation, given the time period and the

uncertainty of the outcome of this appeal, so I have no

opposition to that at this time.

The Court: All right. Thank you, Mr. Lynn. Based

cn the Court’s assessment of the facts and the acquies-

cence in the $5,000 request by the State for the reasons

just stated by Mr. Lynn. this Court at this time will

order that the defendant may be released pending outcome

of this matter on the conditions that, first, he post bail in

the amount of $5,000 and, second, inat he be under what

we would cail close supervision of the Department of

Court Services.

D-6

Mr. Barbeau is present in Court who I believe has

been assigned now to be his probation officer, and, Mr.

Barbeau, I would ask you to set up any form of communi-

cation [8] that you feel is consistent with this Court's

crder of close supervision, given the facts of this case.

Probation Officer: Yes, Your Honor.

The Court: All right. Is there anything further before

us?

Mr. Lynn: I believe not. Your Honor. I will keep

the Court and counsel posted on the progress of the ap-

peal when we have completed the documents.

The Court: This is an unusual case, and I think it’s

fair to say that all the parties to the case recognize that

a successful prosecution of this case rises or falls on the

admissibility of the confession that was the question of

the appeal to the Minnesota Supreme Court. This Court

obviously ruled that the confession was admissible. The

Supreme Court by a 7 to 2 vote took an opposite view. I

am not questioning either their judgment or the process.

I respect both. And I would note on the record that this

Court does feel that the ultimate admissibility of the con-

fession, for whatever final effect that might have, is a

very close question of law in this Court's judgment in-

volving public policy questions and the ultimate use of

the exclusionary rule. For those reasons this Court feels,

whatever the final result may be, it is quite appropriate

that this matter be appealed to the United States Supreme

Court so that they can have their final input on what this

[9] Court considers a very fundamental and important

question. Thank you.