State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-2054

State of Minnesota,
Respondent,

vs.

Melissa Marie Fostvedt,
Appellant.

Filed November 27, 2017
Affirmed
Schellhas, Judge

Ramsey County District Court
File No. 62-CR-15-9523

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

John J. Choi, Ramsey County Attorney, Peter R. Marker, A ssistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Pres iding Judge; Ross, Judge; and Schellhas,
Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges her conviction of un intentional second-degree felony murder
and her sentence, arguing that the district c ourt erred by not suppressing her statement to

2
police and that the sentencing judge exhibited judicial bi as during her sentencing. We
affirm.
FACTS
After appellant Melissa Fost vedt reported in a 911 call that a male, T.J., “had fallen
on a knife at her apartm ent,” police detained, Mirandized, and interviewed her at a police
station. During the interview, Fostvedt explained that T.J. had been cutting up shrimp for
scampi while angry with her because she and he had not had sexual intercourse for two or
three days. Fostvedt said that T.J. was “talking sh-t to [her],” she was ignoring him, and the
“next thing [she] kn[e]w,” he was “laying on the floor.” The police sergeant discontinued the
interview when Fostvedt later stated that she “want[ed] an attorney.”
Respondent State of Minneso ta charged Fostvedt with one count of second-degree
intentional murder and one count of second-degree unintentional felony murder. Fostvedt
moved to suppress the statements she made dur ing her police interview, claiming that the
interviewer coerced her statements and ignored her request for an a ttorney. The district
court denied the motion, and a jury found Fo stvedt guilty of second-degree unintentional
felony murder. The court sent enced her to 198 months’ impr isonment, a top-of-the-box
sentence.
This appeal follows.
D E C I S I O N
I.
The United States and Minnesota Constituti ons provide that i ndividuals have the
right to be free from compelled self-incrimination. U.S. Const. amend. V; Minn. Const. art.

3
I, § 7. The measures set forth in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966),
“protect suspects from the inherently coercive nature of custodial interrogations.” State v.
Ortega, 798 N.W.2d 59, 67 (Minn. 2011). St atements provided during custodial
interrogation are inadmissible unless Miranda rights are validly waived. Id.
On appeal, Fostvedt argues that the dist rict court erred by not suppressing her
statements during her interrogation because the police “failed to ‘stop and clarify’ whether
[she] wanted an attorney present during her interrogation.” We construe this argument as
an alleged failure by the police to vindicate Fostvedt’s right to counsel when she allegedly
invoked it during her police interrogation.
If a suspect invokes his or her right to co unsel 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 availa ble to him, unless the [suspect] himself
initiates further communication, exchanges, or conversations with the police.” Edwards v.
Arizona, 451 U.S. 477, 484–85, 101 S. Ct. 1880, 188 4–85 (1981); State v. Ortega , 813
N.W.2d 86, 94 (Minn. 2012) (quotation omitted). “Under the U.S. Constitution, a suspect
must unambiguously and unequivocally invoke his right to counsel and investigators are
not required to clarify ambiguous requests for an attorney.” Ortega, 798 N.W.2d at 71. A
suspect’s request for counsel is unequivocal if “a reasonable police officer, in the
circumstances, would understand the statem ent to be a request for an attorney.” Id.
(quotation omitted).
The Minnesota Constitution affords s uspects greater protection against compelled
self-incrimination. Id. When a Minnesota suspect make s an equivocal or ambiguous

4
statement that could be cons trued as a request for counse l, investigators must cease
questioning the suspect except as to “narrow questions designed to ‘clarify’ the accused’s
true desires respecting counsel.” State v. Robinson , 427 N.W.2d 217, 223 (Minn. 1988).
This court reviews de novo the application of the “stop and clarify” rule, but defers to any
factual findings by the district court that are not clearly erroneous. Ortega, 798 N.W.2d at
70.
Here, the record reflects that Fostvedt waited alone in an interrogation room for
about 30 minutes. When the police sergeant en tered the room and began giving Fostvedt
her Miranda warning, she repeatedly interrupted the sergeant, asking whether she was
under arrest and stating that she understood her rights and that she “went to college for
this.” When the sergeant asked Fostvedt if she understood that she had “the right to remain
silent and refuse at any time to answer any questions asked by a police officer,” she replied,
“Yeah, I [inaudible on tape] a lawyer.” Throughout the sergeant’s reading of the remainder
of the Miranda advisory, Fostvedt repeatedly stated that she understood her rights, that she
was working toward her degree in criminal ju stice, and that she was familiar with the
criminal justice system. Fostve dt even read her rights out lo ud along with the officer at
times. When the sergeant finished reading the Miranda advisory, Fostvedt initialed each
paragraph and signed the Miranda advisory. Only then did the sergeant begin the
interrogation, and he stopped the interrogation when Fostvedt said, “I want an attorney.”
As to the inaudible portion of her vide otaped interrogation, Fostvedt argued in
district court that she answered the sergeant’s question, “Yeah, I want a lawyer.” (Emphasis

5
added.) The district court found that the serg eant testified credib ly at the suppression
hearing that Fostvedt stated, “‘Yeah, I am a lawyer.’” (Emphasis added.)
Fostvedt argues on appeal that the vide o of her interrogation is unclear about
whether she stated, “I want a lawyer” or “I am a lawyer,” and that the district court’s finding
that she said, “I am a lawyer,” is clearly e rroneous. Fostvedt further argues that she made
an “equivocal and ambiguous” request for coun sel that required the sergeant to “stop and
clarify” whether she wanted a lawyer. Fostvedt claims that the sergeant’s failure to stop
and clarify rendered the interrogation unconstitutional. We disagree. We conclude that the
district court’s finding that Fostvedt stated, “I am a lawyer,” is not clearly erroneous, based
on the interrogation video and the sergeant’s testimony. (Emphasis added.)
Moreover, we defer to the district c ourt’s credibility determination about the
sergeant’s testimony. See State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (stating
that district court findings are not reversed unless clearly erroneous, and great deference is
given to court’s determinations regarding credibility of witnesses), aff’d, 508 U.S. 366, 113
S. Ct. 2130 (1993); see also State v. Klamar , 823 N.W.2d 687, 691 (Minn. App. 2012)
(stating that this court defers to a district court’s credibility determinations when reviewing
a pretrial order on a motion to suppress evidence). We conclude that the district court’s
finding that Fostvedt stated, “I am a lawyer,” is not clearly erroneous.
Fostvedt argues that even if we conclude that she stated, “I am a lawyer,” we also
must conclude that “[her] statement could be construed as an equivocal request for counsel”
because the sergeant knew that she was not a lawyer; a nd her “demeanor during the
interrogation established that her statement ‘I am a lawyer,’ could be construed as a request

6
for a lawyer.” But the supreme court has previo usly observed that “not every mention of
the word ‘lawyer’ or ‘counsel ’ or ‘attorney’ by a suspect ‘a rguably’ suggests that the
suspect wants a lawyer before submitting to furt her questioning.” State v. Hale , 453
N.W.2d 704, 708 (Minn. 1990). “If a statement, viewed in the context in which it is made,
does not even arguably suggest that the accused is asserting that he or she does not wish to
continue the custodial interroga tion without the aid of counse l, then continuation of the
interrogation is proper.” State v. Risk, 598 N.W.2d 642, 649 (Minn. 1999).
In our view, Fostvedt’s statement—“I am a lawyer”—did not arguably suggest that
she was asserting her right to counsel. Consid ered in the context of Fostvedt’s demeanor
and brazenness while the sergeant read her the Miranda rights, her statement was not an
equivocal or ambiguous request for counsel. The statement therefore did not require the
sergeant to “stop and clarify” before continuing with the inte rrogation. We conclude that
“a reasonable police officer, in the circumstances,” would not have understood Fostvedt’s
statement, “I am a lawyer,” to be a request for an attorney. The di strict court therefore
properly denied Fostvedt’s suppression motion.
II.
Fostvedt argues that she is entitled to be resentenced because the sentencing judge
exhibited judicial bias during her sentencing. A criminal defendant is entitled to an
impartial tribunal. McKenzie v. State, 583 N.W.2d 744, 747 (Minn. 1998). “The presence
of an impartial judge is critical to ensure the fairness and integrity of the judicial process.”
State v. Schlienz, 774 N.W.2d 361, 369 (Minn. 2009). But “[o]pinions formed by the judge
on the basis of facts introduced or events occurring in the course of current proceedings, or

7
of prior proceedings, do not constitute a basis for a bias or partia lity motion unless they
display a deep-seated favoritism or antago nism that would make fair judgment
impossible.” State v. Adell , 755 N.W.2d 767, 775 (Mi nn. App. 2008) (quoting State v.
Burrell, 743 N.W.2d 596, 603 (Minn. 2008)), review denied (Nov. 25, 2008). We presume
that a district court judge w ill “set aside collateral knowledge and approach cases with a
neutral and objective disposition.” Id. (quotation omitted). To overcome this presumption,
the party charging bias must “adduce evidence of favoritism or antagonism.” Id. (quotation
omitted).
In this case, the district court asked Fostvedt at sentencing:
Why don’t you say what re ally happened that day?
Because we all know that he did not slip and fall on the knife.
That story is disrespectful of his life and his memory. So why
don’t you say what really ha ppened? Maybe that might
contribute giving the family so me peace so th at they know
what the circumstances of his death were. What happened Ms.
Fostvedt?

When Fostvedt responded: “That is what happened,” the district court stated:
That you do not have the decency to say what really happened
is inhumane, it’s disgraceful, it’s selfish, and it demonstrates a
lack of any responsibility and a lack of remorse on your behalf.
The evidence in this case is overwhelming of your culpability
in the death of [T.J.] . . . . You caused his death.

Fostvedt argues that we must reverse he r sentence “because the district court
exhibited judicial bias a nd personal hostility towards [h er] by criticizing her for not
confessing to the crime at [the] sentencing hearing.”
Judges must “act at all times in a manner that prom otes public confidence in the
independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and

8
the appearance of impropriety.” Minn. Code J ud. Conduct Rule 1.2. Whether a judge has
violated the Code of Judicial Conduct is a question of law that is reviewed de novo. State
v. Dorsey, 701 N.W.2d 238, 246 (Minn. 2005). Th e judge’s remarks in this case were
inappropriate and concerning, particularly because the privilege against compelled self-
incrimination “continues until th e time for appeal has expire d or until the conviction has
been affirmed on appeal.” United States v. Duchi, 944 F.2d 391, 394 (8th Cir. 1991).
But Fostvedt is unable to show that she was prejudiced by the judge’s inappropriate
conduct because Fostvedt received a presump tive sentence. A sentence within the range
provided in the appropriate box on the sentenci ng guidelines grid is not a departure from
the presumptive sentence and therefore is not an abuse of discretion. See Rushton v. State,
889 N.W.2d 561, 565 (Minn. 2017) (stating that “the district court has the discretion to
specify any minimum term of imprisonment that falls within the presumptive range as the
minimum terms of imprisonment”). This cour t presumes that a sentence within the
sentencing range is appropriate. Minn. Sent . Guidelines 2.D (Supp . 2015). Although the
district court imposed a top-of-the-box sentence, the court did not state that it was imposing
that sentence, rather than a middle-of-the-box sentence, ba sed on Fostvedt’s refusal to
admit guilt.
We afford the district court “great disc retion” in the imposition of sentences and
will reverse a sentencing decision only for an abuse of discretion. State v. Soto, 855 N.W.2d
303, 307–08 (Minn. 2014) (quotation omitted). And this court has affirmed a sentence—in
fact an upward-departure sentence—even when it determined that a judge showed personal
bias during the sentencing hearing. State v. Simmons, 646 N.W.2d 564, 570 (Minn. App.

9
2002), review denied (Minn. Sept. 17, 2002). We therefore conclude that Fostvedt is not
entitled to be resentenced.
Affirmed.