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Following a jury trial, Appellant Danny Ortega was convicted of aiding and abetting first-degree premeditated murder. The Supreme Court affirmed Ortega's conviction, holding (1) the district court did not err in denying Ortega's motion to suppress his statements to investigators because, after requesting counsel, Ortega reinitiated the discussion with investigators and then validly waived his right to counsel; (2) the district court did not abuse its discretion when it allowed the prosecutor to ask prospective jurors whether they believed there was anything more valuable than human life, as any error in the prosecutor's questioning of jurors during voir dire was harmless; and (3) the evidence was sufficient to convict Ortega of premeditated murder.Receive FREE Daily Opinion Summaries by Email
STATE OF MINNESOTA
IN SUPREME COURT
State of Minnesota,
Filed: April 18, 2012
Office of Appellate Courts
Danny Ortega, Sr.,
Lori Swanson, Attorney General, Kelly O’Neill Moller, Assistant Attorney General,
St. Paul, Minnesota; and
Paul Kiltinen, Dodge County Attorney, Mantorville, Minnesota, for respondent.
David W. Merchant, Chief Appellate Public Defender, Melissa Sheridan, Assistant State
Public Defender, Eagan, Minnesota, for appellant.
The district court did not err when it admitted appellant’s statements to
investigators because, after initially requesting counsel, appellant reinitiated questioning
with the investigators and then validly waived his Miranda rights.
The district court did not err when it admitted appellant’s statements to
investigators because, after appellant made an equivocal request for counsel, investigators
complied with the “stop and clarify” rule by asking appellant a narrow question designed
to clarify the scope of appellant’s request for counsel.
Any alleged error in the prosecutor’s questioning of jurors during voir dire
did not result in prejudice to the appellant.
Appellant’s pro se arguments are without merit.
Following a jury trial, appellant Danny Ortega, Sr. (“Ortega”) was convicted of
aiding and abetting first-degree premeditated murder, Minn. Stat. §§ 609.185(a)(1),
609.05, subd. 1 (2010), in the stabbing death of Troy Ulrich. Ortega challenges his
conviction on appeal, arguing that (1) the district court erred in denying his motion to
suppress his statements to investigators, and (2) the district court abused its discretion
when it allowed the prosecutor to ask prospective jurors whether they believed there was
anything more valuable than human life.
Ortega also filed a pro se supplemental brief
alleging numerous errors, including a claim that the evidence was insufficient to convict
him of premeditated murder. We affirm Ortega’s conviction.
Troy Ulrich was stabbed to death in a garage at his apartment building in
Claremont, Minnesota, on February 16, 2008. Ulrich lived in Apartment C with his
fiancée. Ortega occasionally stayed across the hall in Apartment A, where Ortega’s
father, Severo Ortega, and Ortega’s son, Danny Ortega, Jr. (“Junior”), resided. Ortega’s
brother-in-law, Arnulfo Bermea, Sr., also lived in the apartment building with his sons,
Anthony and Eric Bermea. Arnulfo rented the garage where Ulrich was stabbed.
At trial, the State presented the following facts. On the afternoon of February 15,
2008, Ortega left Apartment A to go to a bar in Owatonna. Junior’s girlfriend, Marissa
Lane, was staying at Apartment A at the time and testified that she saw Ortega put a
folding knife with a black handle in his pocket before he left.
After Ortega left, a group of people—including Junior, Lane, and Eric and
Anthony Bermea—gathered in Apartment A to play cards and drink beer. When the
group ran out of beer, Junior walked across the hall to Apartment C and asked Ulrich to
join them. Shortly thereafter, Ulrich arrived at Apartment A with beer that he shared
with the others.
Several members of the group, including Junior, Ulrich, and Eric
Bermea, snorted cocaine that evening.
Later that night, Ulrich told Eric and Anthony that Junior had warned Ulrich not to
trust the Bermea brothers because they “were bad people to be hanging around.” Angry
at the accusation, the Bermeas confronted Junior. Junior denied making the comment
and called Ulrich a liar, which led to an argument between Junior and Ulrich. To avoid a
physical altercation, Eric, Anthony, and Ulrich left Apartment A and decided to continue
drinking in the garage rented by Arnulfo. As they were leaving, the Bermeas heard
Junior call Ortega and complain that “somebody was fucken [sic] with him and trying to
fight him.” According to Anthony Bermea, Junior then asked Ortega to come over to
Apartment A “and do something.”
Lane testified that Ortega was drunk when he arrived at Apartment A later that
evening. Ortega and Junior spoke in Spanish, which Lane could not understand. Before
leaving Apartment A, the Ortegas told Lane they were heading to the garage to confront
Upon reaching the garage, Ortega approached Ulrich and asked, “[w]hat the fuck
you got with my son?” Ulrich responded that he did not have a problem with Junior.
Eric testified that Ortega shoved Ulrich with both hands. Ulrich then pushed Ortega, who
punched Ulrich in response. Ulrich picked up a light stand and hit Ortega with sufficient
force to cause Ortega to bleed and fall to the ground. Shortly thereafter, Junior began
striking Ulrich with a bolt cutter. Ortega then stood up, took the bolt cutter from Junior,
and struck Ulrich with it.
Throughout the fight, Ulrich continued to back away from the Ortegas until they
trapped him in a corner of the garage. Anthony testified that Ulrich slumped against a
wall and pleaded with the Ortegas to stop. The Bermeas next heard Ulrich yell, “[h]e’s
got a knife.” Neither brother saw a knife, but Anthony saw Ortega make stabbing
motions as Ulrich said, “[s]top, stop with the knife . . . . Stop stabbing me.” Ulrich then
fell to the ground out of the brothers’ line of sight, but the brothers observed both of the
Ortegas make stabbing motions and continue to beat Ulrich. At that point, the Bermeas
left the garage.
The Bermeas returned to Arnulfo’s apartment. At some point, Anthony went to
Apartment A to tell the Ortegas that he wanted to call the police, but Ortega told
Anthony, “[d]on’t call the fucken [sic] cops.” Anthony thereafter told Junior to move
Ulrich’s body. When Junior asked Anthony for help in moving the body, Anthony
refused. The Bermeas decided not to call the police because Eric was worried that he
would get in trouble for using cocaine earlier that evening.
Meanwhile, the Ortegas and Lane attempted to clean the scene and destroy
incriminating evidence. After the altercation with Ulrich, Ortega and Junior had returned
to Apartment A covered in blood; in fact, Lane testified that, at first, she could not even
recognize Ortega. The Ortegas washed off the blood, and Lane used peroxide to clean a
large cut on Ortega’s head. Ortega put the bloody clothes into a plastic grocery bag, and
then Junior told Lane to throw the bag in a trash dumpster located outside the apartment
building. Ortega also cleaned the black folding knife with bleach before giving it to a
friend to hide from the police. Junior and Lane returned to the garage and dragged
Ulrich’s body into the apartment hallway where numerous residents discovered the body
the next morning. Upon hearing police sirens, Junior and Lane left and went to Lane’s
home in Austin, Minnesota, where Junior planned to catch a bus to Florida to stay with
Evidence recovered by police officers and forensic scientists from the Bureau of
Criminal Apprehension (BCA) largely corroborated the Bermeas’ testimony about the
location and progression of the fight in the garage. Investigators found Ortega’s tooth
and a light stand with blood on it near the location where the Bermeas said the fight
began. Bloodstains demonstrated that the fight moved from one end of a parked car to
the other before proceeding to a corner of the garage. A pool of Ulrich’s blood and hair
found on the wall and floor of the garage confirmed that Ulrich fell to the ground and
died in that corner.
The medical examiner, Dr. Michael McGee, testified that Ulrich suffered eight
stab wounds and one puncture wound, causing Ulrich to bleed to death. Eight of the
wounds were to Ulrich’s chest or midsection, and one of the wounds was so deep that it
broke through Ulrich’s left rib, piercing Ulrich’s lung and heart. Dr. McGee testified that
the stab wounds were consistent with a knife that police recovered from Ortega’s friend.
Dr. McGee’s autopsy also revealed that Ulrich was struck in the facial region six or seven
times, suffered at least five blows to the head, and had defensive injuries on his body.
Dr. McGee testified that there were no bruises on Ulrich’s hand “that would indicate that
he threw any punch.”
The morning that investigators discovered Ulrich’s body, the police arrested
Ortega and took him to Claremont City Hall for questioning. According to the evidence
presented at a contested omnibus hearing, BCA Agents Michael Wold and Dave Giguere
initiated an interview with Ortega. However, after Ortega was informed he was under
arrest and before Agent Wold could read a Miranda warning to Ortega, Ortega stated,
“[w]ell then I’m not gonna say nothin’ I just want to have an attorney present if you’re
gonna question me.” Upon Ortega’s invocation of his right to counsel, Wold and Giguere
terminated the interview.
At the omnibus hearing, Dodge County Investigator Jeremy Gunderson testified
that he conducted a second interview with Ortega later that day, but the events leading up
to that interview are disputed. Gunderson said that he was interviewing one of the
Bermea brothers elsewhere in the building, but was aware that BCA agents were
interviewing Ortega. Upon learning that Ortega had invoked counsel, Gunderson stated
that he began arranging for Ortega’s transportation to the county jail. In making those
arrangements, Gunderson went to the room in which Ortega was being held in order to
speak with Deputy Dean Valere about a transport car. Gunderson testified that when he
entered the room, Ortega said “hi” and Gunderson “said hi back.” Gunderson further
He took his hat off and showed me this wound on his head and said that
they had . . . he had been struck or assaulted, and I told him that I could not
get into the case because I . . . he . . . I was informed that he had requested
counsel. So I could not talk to him about his case unless that he had
requested to speak with me.
Valere testified that Gunderson was the first to say hello: “[Gunderson] and Danny
[started] saying, ‘Hey, how’s it going, Danny.’ And then [Ortega] goes, ‘Well look what
happened to my head man.’ And [Ortega] took his hat off and . . . they just started
talking.” Valere further testified that Gunderson “did say before he left, ‘Hey, I can’t
speak to you about the case. If you want to talk to me, then that’s on you. You can let us
know later if you want to talk to me.’ ” According to Valere, a few minutes after
Gunderson left, Ortega told Valere and Deputy Robert Morris that he wished to talk with
Gunderson. Valere then informed Gunderson that Ortega wanted to have a conversation
At the omnibus hearing, Ortega gave a different account of his exchange with
Gunderson. Ortega testified that Gunderson entered the room during his interview with
Agents Wold and Giguere. According to Ortega, Gunderson said hello, Ortega returned
the greeting, and then Gunderson grabbed a piece of paper from the table and left the
room. Ortega alleged Wold then threatened him: “He said he could put me anywhere he
wants in prison.” Ortega said that Wold’s statement “got me kind of scared.” Ortega
testified that Gunderson then returned to the room, where Wold told Gunderson that
Ortega had invoked counsel and needed transportation to the county jail. Ortega stated
that, after Wold left the room, Gunderson told Ortega, “ ‘I know you don’t want to talk
to . . . the big guys with the suits on.’ He said, ‘Would you want to talk to me, because
we know each other and stuff.’ ” Ortega admitted that he later asked investigators for an
opportunity to speak with Gunderson.
It is undisputed that Gunderson and Wold returned to the interview room after
learning Ortega wanted to talk to Gunderson. The following recorded conversation then
[GUNDERSON]: [A]gain I’m Investigator Gunderson. I’m down here
because while they were getting ready to transport you, you you guys
informed that you wanted an attorney, and you show[ed] me the knot on
your head. Correct? (pause) Okay. And [you] made a statement that you
were punched so I told you that yeah I wouldn’t mind
[ORTEGA (interrupting)]: I even lost my tooth.
[GUNDERSON]: Okay. I wouldn’t mind getting your side of the story,
but you would have to waive your right to counsel and I said you’d have to
request it from these guys. These guys came down and just told me that
you want to talk with me. Is that correct?
[GUNDERSON (to WOLD)]: Okay. Is that true? Is that what
[WOLD]: That is why and that’s what happened. When we ended our
interview, you told me that you wanted to talk to a lawyer when you were
about to be transported.
[ORTEGA]: Oh yeah.
[WOLD]: When you were about to be transported you described an injury
that we took photos of and [other agents] and myself all observed and also
that you lost a tooth. At that point, you told me that you wanted to tell your
side of the story to Detective Gunderson because you have a rapport with
him, that you’ve dealt with him on other issues. Correct? (pause). Okay.
So at this time, you’re waiving your right to a lawyer and to visit with ah
[Investigator Gunderson] at this time? (pause) Is that correct?
[ORTEGA]: I didn’t hear you sir.
[WOLD]: I’m sorry. So at this time Mr. Ortega you’re waiving your right
to a a lawyer and to visit with [Investigator Gunderson] at this point?
Ortega then waived his rights after receiving a Miranda warning from Gunderson.
Gunderson continued the interview, and Ortega told Gunderson his version of the
events that led to Ulrich’s death. Ortega explained that he approached Ulrich in the
garage and asked him, “what’s the deal here?
How come you want to fight with
Ortega admitted that he first pushed Ulrich.
But Ulrich responded by
removing his glasses, picking something up from the ground, and hitting Ortega in the
mouth and head with it, which knocked out Ortega’s tooth and caused blood to run into
his eyes. Once Ulrich hit him, Ortega said he “really got mad” and “lost it.” Ortega said
he pulled a knife from his pocket and stabbed Ulrich in self-defense. Ortega also stated
that he believed Ulrich was on drugs because Ulrich “flipped” and would not stop hitting
Throughout the interview, Ortega answered all of Gunderson’s questions except
those relating to the location of the murder weapon. Gunderson asked Ortega about the
location of the knife, but Ortega did not respond. Gunderson then gave a lengthy
explanation of why it would be in Ortega’s best interest to disclose the knife’s location.
The following exchange then occurred:
[GUNDERSON]: No. I don’t think you’re hiding a lot of other stuff. I’m
just asking . . . the only thing I wanted to do was to go get the knife. That’s
all I’m asking ya. That’s the only thing I want to do is obviously your shirt
you threw away. Yeah. It’s ruined. Okay? But the knife I have to match
up to the body. Okay? To show in in those wounds all right that was from
that knife. All right? That helps me on my end and if you’re like you are
saying a victim of that then there shouldn’t be a problem is what I’m trying
to say to you, but if you’re trying to hide it then now it makes me go why
won’t you want to give me the knife. You know what I mean. That’s kind
[ORTEGA]: Cuz that there I would have to talk to an attorney on that first.
[GUNDERSON]: On the knife part?
[GUNDERSON]: Okay. Okay. That’s fine. But it just makes things . . .
do you understand? Kind of unusual. You know what I mean? That you
just wouldn’t say this is where I have things hidden at so. Okay?
Gunderson then redirected the questioning to issues other than the knife.
Before the district court, Ortega filed a motion to suppress his statements to
Gunderson on the ground that Gunderson obtained the statements in violation of Ortega’s
right to counsel under the United States and Minnesota Constitutions. Specifically,
Ortega argued that he invoked his right to counsel at the outset of the interview and his
subsequent waiver of that right was invalid because (1) Agent Wold coerced Ortega’s
waiver by threatening him, and (2) Ortega suffered from a head injury at the time of the
interview. Alternatively, Ortega argued the court should suppress any statements that he
made after he unambiguously reinvoked his right to counsel when Gunderson asked him
about the knife. The court denied Ortega’s motion to suppress, holding that “[t]he totality
of circumstances presented in the record indicate[d] that [Ortega] cooperated with
Investigator Gunderson voluntarily, autonomously and willingly” and that “Gunderson’s
dialogue ha[d] characteristics designed to solicit clarification or otherwise engage
[Ortega] in fair questioning while respecting [Ortega’s] constitutional rights.” Because
the court denied Ortega’s motion, the State played relevant portions of Ortega’s recorded
statements for the jury at trial.
During deliberations, the jury asked to hear again the statements in question.
After listening to the statements, the jury returned guilty verdicts on each of the four
counts of the indictment: aiding and abetting first-degree premeditated murder, Minn.
Stat. §§ 609.185(a)(1), 609.05, subd. 1; aiding and abetting first-degree felony murder
while committing or attempting to commit a burglary, Minn. Stat. §§ 609.185(a)(3),
609.582, subd. 1(a), 609.05, subd. 1 (2010); aiding and abetting second-degree
intentional murder, Minn. Stat. §§ 609.19, subd. 1(1), 609.05, subd. 1 (2010); and aiding
and abetting second-degree felony murder while committing second-degree assault,
Minn. Stat. §§ 609.19, subd. 2(1), 609.222, subd. 1, 609.05, subd. 1 (2010). The district
court then convicted Ortega of aiding and abetting first-degree premeditated murder and
sentenced him to a term of life imprisonment without the possibility of release. This
The first question presented in this case is whether the district court erred in
denying Ortega’s motion to suppress his statements to investigators. More specifically,
Ortega argues that, after invoking his right to counsel at the beginning of his interview
with Agents Wold and Giguere, investigators improperly reinitiated questioning. Ortega
also argues that investigators failed to honor the reassertion of his right to counsel
midway through his interview with Gunderson. We consider each of Ortega’s arguments
We turn first to Ortega’s argument that investigators improperly resumed their
interrogation of him after he invoked his right to counsel at the outset of his interview
with Agents Wold and Giguere. If a suspect invokes his right to counsel during a
custodial interrogation, all questioning must cease, and the suspect “is not subject to
further interrogation by the authorities until counsel has been made available to him,
unless the [suspect] himself initiates further communication, exchanges, or conversations
with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). Thus, once Ortega
invoked his right to counsel, investigators could not interview Ortega unless he reinitiated
discussions with them and knowingly and intelligently waived his right to counsel. See
State v. Munson, 594 N.W.2d 128, 139 (Minn. 1999).
The parties agree that Ortega knowingly and intelligently waived his right to
counsel when he responded affirmatively to Agent Wold’s question about whether Ortega
was waiving his right to an attorney in order to speak with Investigator Gunderson. But
the parties disagree about whether Ortega reinitiated the discussion—which would permit
the investigators to begin questioning Ortega after receiving a knowing and intelligent
waiver of Ortega’s right to counsel—or whether the investigators reinitiated the
discussion—which would require Ortega’s statements to be suppressed. We conclude
that Ortega reinitiated the discussion with investigators.
A suspect reinitiates contact with police when the statements made by the suspect
“represent a desire on the part of [the suspect] to open up a more generalized discussion
relating directly or indirectly to the investigation.” Oregon v. Bradshaw, 462 U.S. 1039,
1045 (1983) (plurality opinion). As the Supreme Court has recognized, a distinction
exists between statements or questions “relating to routine incidents of the custodial
relationship” and those that “evince a willingness and a desire for a generalized
discussion about the investigation.”
Id. at 1045-46.
For example, the plurality in
Bradshaw concluded that the question, “well, what is going to happen to me now?”
constituted reinitiation by the suspect because “[i]t could reasonably have been
interpreted by the officer as relating generally to the investigation.” Id. at 1046. On the
other hand, we held in State v. Staats that a suspect who “asked about the extension of his
36-hour hold, a shower, and a phone call to his mother” did not reinitiate discussions with
police because those were questions incidental to the custodial relationship. 658 N.W.2d
207, 214 (Minn. 2003).
The facts of this case more closely resemble Bradshaw than Staats. Ortega made
two statements following his invocation of counsel. First, Ortega asked Gunderson to
look at his head injury.
Second, Ortega told deputies that he wished to speak to
We need not determine whether Ortega’s first statement constitutes
reinitiation of discussion about the case because, given its context, Ortega’s subsequent
declaration that he wished to speak with Gunderson was a statement evincing a desire for
a generalized discussion about the investigation.
When Ortega mentioned his head wound to Gunderson, Gunderson informed
Ortega that the two of them could not discuss Ortega’s case “unless [Ortega] requested to
speak with” him.
Gunderson further told Ortega that he “wouldn’t mind getting
[Ortega’s] side of the story, but [that Ortega] would have to waive [his] right to counsel
and . . . request it from” the BCA agents. Thus, when Ortega asked to speak with
Gunderson shortly after Gunderson left the room, an officer could reasonably interpret
Ortega’s statement as a request to engage in a generalized discussion with Gunderson
about Ulrich’s murder. See Bradshaw, 462 U.S. at 1046 (examining how the officer may
have “reasonably . . . interpreted” the suspect’s statement in determining whether the
suspect reinitiated discussions with police); State v. Miller, 573 N.W.2d 661, 672 (Minn.
1998) (holding that the suspect initiated further questioning when, after being told that he
had to waive his right to counsel before speaking with investigators, the suspect replied,
“I’d like to exercise that option”).
Similar to the statement at issue in Bradshaw,
therefore, Ortega’s statement that he wished to speak to Gunderson constituted
reinitiation of “further communication, exchanges, or conversations with the police”
about the investigation. Edwards, 451 U.S. at 484-85.
Ortega does not dispute that he asked to speak to Investigator Gunderson; rather,
Ortega argues that it was Gunderson, not Ortega, who reinitiated the discussion after
Ortega invoked his right to counsel. Specifically, Ortega points to three statements by
Gunderson. First, Ortega claims that Gunderson told him, “Well, you don’t want to talk
to the guys in the suits, but you can talk to me.” Second, after Ortega showed Gunderson
the wound on his head, Gunderson said that they could not talk about the case unless
Ortega requested to speak with him. Third, Gunderson said, “I told you that yeah I
wouldn’t mind . . . getting your side of the story, but you would have to waive your right
to counsel and I said you’d have to request it from these guys.”
With respect to the first statement, the record is devoid of any evidence
corroborating Ortega’s claim that Gunderson told Ortega that he could talk to Gunderson
rather than “the guys in the suits.” After hearing Ortega’s testimony at the omnibus
hearing, the district court found that Ortega’s description of some of the circumstances of
the interrogation was “uncorroborated and incredible.” Nothing in the record draws into
doubt the district court’s view of Ortega’s credibility. With respect to the statement in
question, Gunderson specifically denied telling Ortega that he could talk to him about the
case rather than the “guys in the suits,” and none of the deputies in the room substantiated
Ortega’s version of events. Instead, Deputy Valere, who was present with Ortega from
the time Ortega first told Wold that he wanted an attorney to the time Ortega requested to
speak with Gunderson, corroborated Gunderson’s account. Given the foregoing evidence
and the district court’s refusal to credit important parts of Ortega’s testimony regarding
the circumstances of the interrogation, we reject Ortega’s claim.
In contrast to the first statement, the State concedes that Gunderson made both the
second and third statements. Ortega argues that these statements, either together or
standing alone, were sufficient to constitute reinitiation of the interrogation by
Gunderson. We disagree. An officer reinitiates an interrogation if “the evidence in the
record shows that the officers should have known that their conversation was reasonably
likely to elicit an incriminating response from [the suspect] or to get [the suspect] to
revoke his right to counsel.” Munson, 594 N.W.2d at 142 (citing Rhode Island v. Innis,
446 U.S. 291, 301 (1980)). Our inquiry focuses on “the perceptions of the suspect rather
than on the intent of the police, and must consider the totality of the circumstances
surrounding the suspect’s custody.” State v. Earl, 702 N.W.2d 711, 719 (Minn. 2005)
(citing Innis, 446 U.S. at 301).
The second statement—that Gunderson “could not talk to [Ortega] about his case
unless . . . he had requested to speak with me”—was simply an accurate restatement of
the Edwards rule in response to Ortega’s attempt to show Gunderson his head wound. It
was not “reasonably likely to elicit an incriminating response” from Ortega or encourage
Ortega to revoke his right to counsel. Indeed, we have concluded under similar facts that
accurately clarifying a suspect’s constitutional rights does not constitute reinitiation of
interrogation or its functional equivalent. See Miller, 573 N.W.2d at 667, 672 (holding
that police officers “scrupulously” refrained from questioning the suspect when they
responded to his repeated questions by explaining that they would not talk to the suspect
unless he said, “ ‘I understand my rights. I want to talk to you without an attorney.’ ”).
The third statement—in which Investigator Gunderson recounted what had
occurred during a prior exchange between Gunderson and Ortega—likewise does not
constitute reinitiation of the interrogation by Gunderson.
In this third statement,
Gunderson reported that he had previously told Ortega that he “wouldn’t mind . . . getting
[Ortega’s] side of the story,” but that Ortega “would have to waive [his] right to counsel”
and gain permission from the BCA agents to speak with Gunderson. The context of
Gunderson’s statement is relevant because we evaluate questions relating to reinitiation
following a suspect’s invocation of his or her right to counsel in light of the totality of the
circumstances. See Earl, 702 N.W.2d at 719; Staats, 658 N.W.2d at 214. Viewed in
proper context, Gunderson’s statement was responsive to Ortega’s attempt to show
Gunderson the wound on his head and to explain how he was injured.
Gunderson expressed his willingness to hear Ortega’s side of the story, Gunderson did
not attempt to pressure or coerce Ortega into revoking his prior invocation of counsel.
Nor did Gunderson’s statement suggest that, if Ortega did not waive his right to counsel,
Ortega’s side of the story would remain unknown or Ortega’s silence would otherwise
hamper his defense. Cf. State v. Ray, 659 N.W.2d 736, 742-43 (Minn. 2003) (holding
that an officer impermissibly attempted to have a suspect revoke his right to counsel
when the officer said that the suspect’s invocation of counsel would prevent the police
from sharing information with the suspect); State v. Hannon, 636 N.W.2d 796, 805 n.2
(Minn. 2001) (concluding it was improper for an officer to imply that a suspect’s choice
to speak with an attorney meant that the suspect would never have an opportunity to tell
his side of the story). Rather, Gunderson accurately advised Ortega that they could speak
about Ortega’s case at that time only if Ortega elected to waive his prior invocation of
counsel. We have upheld similar statements by officers in the past, see Miller, 573
N.W.2d at 672; State v. Pilcher, 472 N.W.2d 327, 332 (Minn. 1991), and the facts of this
case do not require us to reach a different conclusion here.
We therefore conclude that none of the three statements identified by Ortega
constituted reinitiation of questioning by the investigators or an attempt to get Ortega to
revoke his right to counsel. Accordingly, the district court did not err when it admitted
Ortega’s statements to investigators because, after requesting counsel, Ortega reinitiated
the discussion with investigators and then validly waived his right to counsel.
Ortega further argues that, even if he validly waived his right to counsel, he
reinvoked his right to counsel midway through Gunderson’s questioning, and Gunderson
failed to “stop and clarify” Ortega’s request. Ortega points to the following exchange
with Gunderson as evidence that he reinvoked his right to counsel:
[GUNDERSON]: [I]f you’re like you are saying a victim of that then there
shouldn’t be a problem is what I’m trying to say to you, but if you’re trying
to hide [the knife] then now it makes me go why won’t you want to give me
the knife. You know what I mean. That’s kind of strange.
[ORTEGA]: Cuz that there I would have to talk to an attorney on that first.
[GUNDERSON]: On the knife part?
[GUNDERSON]: Okay. Okay. That’s fine. But it just makes things . . .
do you understand? Kind of unusual. You know what I mean? That you
just wouldn’t say this is where I have things hidden at so. Okay?
Ortega does not dispute that his statement, “[c]uz that there I would have to talk to an
attorney on that first,” was an equivocal request for counsel. See State v. Ortega, 798
N.W.2d 59, 70-71 (Minn. 2011) (holding that the statement, “ ‘[a]m I suppose[d] to have
a lawyer present?’ ” was an equivocal request for counsel); Pilcher, 472 N.W.2d at 332
(concluding the defendant made an equivocal request for counsel when he asked whether
the officer thought the defendant should have an attorney). Indeed, Ortega’s statement
did not specify whether Ortega was requesting Gunderson to cease the interrogation
altogether or whether Ortega wanted to avoid further discussions about the knife because
it would require him to consult with counsel.
The Supreme Court has held that an ambiguous request for counsel does not
require the termination of an interview. See Davis v. United States, 512 U.S. 452, 459
(1994); see also Munson, 594 N.W.2d at 139-40. But our case law imposes an additional
obligation on officers when a suspect makes an equivocal request for counsel: officers
must cease questioning the suspect except as to “narrow questions designed to ‘clarify’
the [suspect’s] true desires respecting counsel.” State v. Robinson, 427 N.W.2d 217, 223
Gunderson complied with the “stop and clarify” rule by clarifying Ortega’s
equivocal request for counsel when he asked whether the request related only to “the
Put another way, Gunderson’s question (“On the knife part?”) was a
clarification of the indefinite antecedent “that” in Ortega’s statement about counsel (“Cuz
that there I would have to talk to an attorney on that first.”). When Ortega confirmed
“that” meant “on the knife part,” Ortega’s earlier statement could be read to say, “I would
have to talk to an attorney about the knife.” Ortega’s statement indicates that he desired
counsel’s advice only for questions related to the location of the murder weapon. It does
not evince a desire to cut off all questioning until counsel was present. Accordingly,
Gunderson properly clarified Ortega’s request because Gunderson asked a narrow
question “designed to ‘clarify’ [Ortega’s] true desires respecting counsel.”1 Id. We
therefore conclude that the district court did not err when it admitted Ortega’s statements
The second question presented in this case is whether the district court abused its
discretion when it allowed the State to ask potential jurors, “[d]o you think there is
anything more valuable than human life?” The first time the State asked the question,
Ortega objected on the ground that the question would not elicit meaningful information
from a prospective juror. The district court summarily overruled the objection. From
that point on, the State asked the question of all but one juror who sat on Ortega’s jury.
Ortega contends the district court abused its discretion in permitting the question
because it “was not designed to determine whether to exercise a peremptory challenge.
Rather, it was a patent attempt to plant the idea that the jurors should reject Ortega’s
claim of self-defense because no one has the right to take someone else’s life.” The State
In arguing otherwise, Ortega focuses on Gunderson’s statements immediately
prior to Ortega’s statement equivocally requesting counsel to contend that, rather than
stopping and clarifying, Gunderson coerced Ortega to keep talking by suggesting “that
Gunderson wanted to help [Ortega] establish a self-defense claim” and that Gunderson
could help only if Ortega waived his right to counsel. Yet Ortega’s observation does not
suggest that Gunderson violated the “stop and clarify” rule in this case because
Gunderson made the statements in question before Ortega mentioned an attorney.
Clarification under the “stop and clarify” rule applies only to statements made by officers
in response to an equivocal request for counsel. See Robinson, 427 N.W.2d at 223.
counters that the district court did not abuse its discretion when it allowed the State to ask
the question of jurors because it “helped determine the competency of the jurors to serve
in a first-degree murder case.” More specifically, the State contends that the question
“was relevant for the parties to know if the jurors valued human life, or if they believed
certain lives were not worth valuing.”
We need not determine whether the district court abused its discretion in
permitting the State to ask jurors the question at issue because, regardless of the propriety
of the questioning, we conclude that the questioning did not affect the outcome of the
case for three reasons. See State v. Bolstad, 686 N.W.2d 531, 543-44 (Minn. 2004)
(declining to decide whether the State’s voir dire questions were error, and instead
dismissing the defendant’s argument on the ground that any error was not prejudicial).
First, the State’s questioning could have aided Ortega’s case. In presenting a case
of self-defense, Ortega was asking the jury to believe that he feared for his “human life”
when he stabbed Ulrich. Consequently, asking jurors, “[d]o you think there is anything
more valuable than human life?” may have caused the jurors to identify with Ortega and
his theory of the case—namely, that the murder in this case was justified because Ulrich
threatened Ortega’s life. Notably, defense counsel actually followed the State’s lead in
asking one juror whether his “moral beliefs also include a value of human life.”
Second, the district court accurately instructed the jury on the elements of each of
the offenses in the indictment, the requirements of self-defense, and the applicable burden
of proof. Indeed, the district court emphasized in its instructions that jurors should not
base their verdict on “bias, prejudice, or sympathy,” weakening Ortega’s claim that the
jurors were motivated by improper considerations in convicting him. We must assume
the jurors followed the district court’s instructions. See State v. Vang, 774 N.W.2d 566,
578 (Minn. 2009).
Third, the State never suggested in closing arguments that the jury should reject
Ortega’s claim of self-defense because no one has the right to take a life under any
circumstances. Cf. State v. Hill, 801 N.W.2d 646, 658 (Minn. 2011) (examining whether
the State emphasized allegedly erroneous evidence in closing arguments in determining
whether the alleged error was harmless). Rather, the State argued that, under the specific
circumstances of this case, Ortega’s killing of Ulrich was not justified under the doctrine
Accordingly, we conclude that Ortega is not entitled to a new trial because any
error in the State’s questioning of jurors during voir dire was harmless.
Ortega raises six other claims in his supplemental pro se brief. Specifically,
Ortega argues: (1) investigators violated State v. Scales, 518 N.W.2d 587, 592 (Minn.
1994), when they turned off the digital recorder between interviews with Ortega; (2) the
district court abused its discretion when it failed to order a Rule 20 competency
evaluation at Ortega’s request; (3) the State committed a discovery violation when it
failed to disclose Ulrich’s history of violent crimes; (4) the jury was not impartial because
it did not contain any jurors of Ortega’s race; (5) Ortega received ineffective assistance of
trial counsel; and (6) the State did not present sufficient evidence to support Ortega’s
conviction of first-degree premeditated murder. We have carefully considered the first
five claims and conclude that each lacks merit.
The last of Ortega’s pro se claims—that the State’s evidence was insufficient to
support Ortega’s conviction of first-degree premeditated murder—merits greater scrutiny.
When considering a claim of insufficient evidence, our review “is limited to a painstaking
analysis of the record to determine whether the evidence, when viewed in the light most
favorable to the conviction, was sufficient to permit the jurors to reach the verdict which
they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (citing State v. Martin, 293
N.W.2d 54, 55 (Minn. 1980)). We assume the jury believed the State’s witnesses and
disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn.
1989). And we will not disturb the verdict if the jury, acting with due regard for the
presumption of innocence and the requirement of proof beyond a reasonable doubt, could
reasonably conclude that the defendant was guilty of the charged offense. Bernhardt v.
State, 684 N.W.2d 465, 476-77 (Minn. 2004).
In this case, the State relied heavily on circumstantial evidence to prove that
Ortega premeditated Ulrich’s murder. A conviction supported by circumstantial evidence
requires us to apply a two-step inquiry:
First, we must identify the circumstances proved, giving deference to the
jury’s acceptance of the proof of these circumstances and rejection of
evidence in the record that conflicted with the circumstances proved by the
State. Second, we independently examine the reasonableness of all
inferences that might be drawn from the circumstances proved, including
inferences consistent with a hypothesis other than guilt. Thus, our review
consists of determining whether the circumstances proved are consistent
with guilt and inconsistent with any rational hypothesis except that of guilt.
State v. Anderson, 789 N.W.2d 227, 241-42 (Minn. 2010) (citing State v. Andersen, 784
N.W.2d 320, 329-30 (Minn. 2010)) (internal quotation marks omitted). We consider
“three categories of evidence relevant to an inference of premeditation: planning activity,
motive, and the nature of the killing.” State v. Yang, 774 N.W.2d 539, 560 (Minn. 2009).
Planning activity includes “facts about how and what the defendant did prior to the
actual killing which show he was engaged in activity directed toward the killing.” State
v. Hughes, 749 N.W.2d 307, 313 (Minn. 2008) (citation omitted). Here, the State’s
evidence of planning activity came from the progression of the fight itself. The Bermeas
testified that the Ortegas beat and followed Ulrich until they trapped him in a corner of
the garage. Forensic evidence, including Ortega’s bloody handprints and a pool of
Ulrich’s blood, corroborates the Bermeas’ testimony. Making the decision to chase a
victim is circumstantial evidence of premeditation. See, e.g., State v. Holliday, 745
N.W.2d 556, 564 (Minn. 2008); State v. Richardson, 393 N.W.2d 657, 665 (Minn. 1986);
State v. Jones, 347 N.W.2d 796, 801 (Minn. 1984). Moreover, Anthony Bermea testified
that when Ulrich was losing the fight, he slumped against a wall and pleaded with the
Ortegas to stop their attack. Yet, as Ulrich fell to the ground, the Bermeas heard Ulrich
say that Ortega had a knife, saw Ortega make stabbing motions, and heard Ulrich say,
“[s]top, stop with the knife . . . . Stop stabbing me.” Given Ulrich’s pleas and the
forensic and eyewitness evidence, a sufficient amount of time passed for Ortega to
premeditate the murder by “consider[ing], plan[ning] or prepar[ing]” to kill Ulrich.
Minn. Stat. § 609.18 (2010) (defining premeditation); see also State v. Palmer, 803
N.W.2d 727, 738-39 (Minn. 2011) (holding that premeditation can occur in a short
amount of time, even after a fight has already commenced); Moore, 481 N.W.2d at 362
(concluding that defendant’s statement, “[g]ood-bye Debra, I am going to kill you now”
before defendant shot the victim “permit[ed] an inference that defendant had sufficient
time to contemplate his actions before carrying them out”).
Motive evidence includes “prior threats by the defendant to do violence to the
victim, plans or desires of the defendant which would be facilitated by the death of the
victim, and prior conduct of the victim known to have angered the defendant.” Moore,
481 N.W.2d at 361 (citation omitted). Evidence of motive is not necessary to find
premeditation, but it can help demonstrate that a defendant deliberated before killing.
Palmer, 803 N.W.2d at 735.
Having held that the district court properly admitted
Ortega’s statements to investigators, Ortega’s statement that he was “pissed” is indicative
of his motive for the killing. The jury could infer that Ortega began the fight to “take
care of” an individual who had been involved in an altercation with his son, and when
Ulrich fought back, Ortega decided to kill Ulrich. Put differently, the State’s evidence
established that Ortega’s decision to confront Ulrich on behalf of his son motivated the
Finally, we examine evidence about the nature of the killing, such as “the number
of wounds inflicted, infliction of wounds to vital areas, . . . passage of time between
infliction of wounds, and a defendant’s concern with escape rather than with rendering
aid to the victim.”
State v. McArthur, 730 N.W.2d 44, 50 (Minn. 2007) (citation
omitted). Here, the State proved that Ulrich was stabbed eight times and the Ortegas
delivered seven of those blows to Ulrich’s chest and midsection, indicating that they were
aiming for Ulrich’s vital organs. In his statement to investigators, Ortega admitted that
he left Ulrich bleeding in the garage, which evinced a “concern with escape rather than
rendering aid.” Id. The State also elicited extensive testimony about the measures
Ortega took to escape detection, such as: (1) refusing to call the police; (2) cleaning the
bloody knife with bleach; (3) asking his friend to hide the knife; (4) disposing of bloody
clothing; and (5) arranging for Junior’s flight from Claremont. Thus, the nature of the
killing in this case provides additional support for the jury’s finding of premeditation.
We also conclude that the circumstances proved at trial are inconsistent with an
inference that Ortega is innocent of premeditated first-degree murder. See Andersen, 784
N.W.2d at 331 (“We must next determine whether the reasonable inferences that can be
drawn from the circumstances proved are consistent with guilt and inconsistent with any
rational hypothesis other than [the defendant]’s guilt.”). In this case, the Ortegas pursued
Ulrich across the garage and trapped him in a corner. They then stabbed him multiple
times near his vital organs even after Ulrich pleaded for them to stop. The facts of this
case are similar to Palmer, in which we concluded that evidence that a defendant shot,
paused, and then stood over his victim to “finish him off” was inconsistent with an
argument that the killing was done as a rash impulse. See Palmer, 803 N.W.2d at 73738. Like Palmer, the circumstances proved by the State in this case are inconsistent with
any rational hypothesis except that of Ortega’s guilt for first-degree premeditated murder.
Therefore, we conclude that the evidence in this case was sufficient to permit the
jury to find Ortega guilty of first-degree premeditated murder.
For the foregoing reasons, we conclude there is no reversible error in this case.
Accordingly, we affirm Ortega’s conviction of first-degree premeditated murder.