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This opinion will be unpublished and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
A17-0225

State of Minnesota,
Respondent,

vs.

Wayne Alan Menter,
Appellant.

Filed April 9, 2018
Affirmed
Johnson, Judge

Redwood County District Court
File No. 64-CR-16-155

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

Jenna M. Peterson, Redwood County Attorney, Joel C. Brakken, Assistant County
Attorney, Redwood Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief A ppellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Cleary, Chief Judge; and
Kirk, Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
A Redwood County jury found Wayne Alan Menter gui lty of driving while
impaired. The jury’s verdict is based on evidence that Menter drove his truck into a ditch,
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that law-enforcement officers at the scene perceived that he was intoxicated, that a relative
who was present told the officers that Menter wa s intoxicated, and that Menter admitted
that he had been drinking before he was driving. Menter petitioned for post -conviction
relief on the ground that his trial attorney was ineffective because the attorney did not
attempt to suppress the state’s evidence that Menter admitted to drinking and because the
attorney did not object to that evidence at trial . The post -conviction court denied the
petition on the ground that Menter’s trial attorney’s performance was not deficient because
there was no lega l basis for an argument that Menter’s admission was inadmissible. We
affirm.
FACTS
Menter was arrested on February 28, 2016, after he drove his truck into a ditch on
county highway 15 and failed a series of field-sobriety tests. The state charged him wi th
three counts: (1) first-degree driving while impaired, in violation of Minn. Stat. § 169A.20,
subd. 1(1) (2014), based on an allegation that Menter was under the influence of alcohol ;
(2) first-degree driving while impaired, in vio lation of Minn. Stat. § 169A.20, subd. 1(5),
based on an allegation that Menter’s alcohol concentration was 0.08 or more ; and
(3) driving after cancellation, in violation of Minn. Stat. § 171.24, subd. 5 (2014).
The case was tried on one day in October 20 16. The state called three witnesses:
Menter’s nephew, W.M., and two deputy sheriffs who responded to the report that Menter’s
truck was in the ditch, Mike Campbell and Mitch Zimmermann. Menter did not testify and
did not offer any other evidence.
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W.M. testified that he received a telephone call from Menter, who said that he had
driven his truck into a ditch and needed W.M. to pull out the truck. W.M. drove to the
place that Menter described and pulled Menter’s truck out of the ditch. As W.M. began to
drive away, Menter drove his truck into the opposite ditch. W.M. turned around and
attempted to pull Menter’s truck out of the ditch a second time, but W.M.’s tow strap broke.
W.M. testified that Menter appeared to be intoxicated.
Deputy Campbell testified that he responded to a report from a dispatcher that a
vehicle was stuck in a ditch. When he arrived at the scene , he saw Menter and W .M.
Deputy Campbell noticed that Menter’s speech was slow and slurred , that he smelled of
alcohol, and that he was leaning on the truck to support him self, which led Deputy
Campbell to believe that Menter was intoxicated. Deputy Campbell spoke to W.M., who
said that Menter was intoxicated. Deputy Campbell also testified that he found the truck’s
keys in one of Menter’s pockets while performing a search.
Deputy Zimmermann testified that he arrived at the scene a couple minutes after
Deputy Campbell. He testified that he detected a strong odor of alcohol and slurred speech
when he talked to Menter and suspected that he was under the influence of alcohol. He
testified that Menter admitted to drinking beer at a bar before driving the truck. The state
played for the jury a video-recording of Deputy Zimmermann’s conversation with Menter,
which was captured by Deputy Zimmermann’s dashboard camera. The audio portion of
the video -recording reveals that Deputy Zimmermann asked Menter questions such as,
“What’s going on here tonight?,” “ How did you end up in the ditch here?,” “How much
did you have to drink tonight, Wayne?,” and “Were you drinking at the bar tonight [or] just
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kinda drinking on the road?” Menter responded by saying that he could not tell the deputy
how much he had drunk but that he had “a few beers” at a bar in the city of Sanborn.
Deputy Zimmermann testified that he administered field sobriety test s, which confirmed
his suspicion that Menter was under the influence of alcohol . Deputy Zimmermann
arrested Menter. Menter later submitted to a breath test, which revealed an alcohol
concentration of 0.17.
The jury found Menter guilty o n count 1 and count 2 . The district court found
Menter guilty on count 3, for which Menter had waived his right to a jury trial. The district
court imposed a sentence of 57 months of imprisonment on count 1.
Menter filed a timely notice of appeal and later asked this court to stay the direct
appeal to allow him to seek post-conviction relief. See Minn. R. Crim. P. 28.02, subd. 4(4).
We granted the stay. In July 2017, Menter filed a post -conviction petition in which he
argued that his trial attorney was ineffective because he did not mov e to suppress the
evidence of his statements to the officers and did not object to th at evidence at trial. In
August 2017, the post-conviction court denied the petition, without an evidentiary hearing,
on the ground that Menter failed to allege facts that are capable of proving that his trial
attorney’s performance was deficient. In September 2017 , we dissolved the stay and
reinstated the appeal.
D E C I S I O N
Menter argues that his trial attorney was ineffective because he did not move to
suppress the state’s evidence that Menter admitted to drinking before he drove into the
ditch and because he did not object to the evidence at trial. Menter contends that his trial
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attorney should have challenged the state’s evidence on the ground s that his admission
arose from a custodial interrogation and that he was not given a Miranda warning.
A criminal defendant is entitled to the assistance of counsel in a criminal
prosecution. U.S. Const. amend. VI; Minn. Const. art I, § 6. Th e right to counsel is the
right to the “effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686,
104 S. Ct. 2052, 2063 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90
S. Ct. 1441, 1449 n.14 (1970)) (emphasis added). A defendant claiming a violation of the
constitutional right to the effective assistance of counsel must prove two things:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second,
the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel ’s
errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064. In general, “there is a strong presumption that counsel ’s
performance fell within a wide range of reasonable assistance.” Bruestle v. State , 719
N.W.2d 698, 705 (Minn. 2006) (quotation omitted).
A suspect who is asked questions in a custodial interrogation has a right to be
informed of certain constitutional rights, including the Fifth Amendment right against self-
incrimination. Miranda v. Arizona, 384 U.S. 436, 444, 467-79, 86 S. Ct. 1602, 1612, 1624-
30 (1966). A “custodial interrogation ” exists if “questioning [was] initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way.” Id. at 444, 86 S. Ct. at 1612; see also State
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v. Heden, 719 N.W.2d 689, 694-95 (Minn. 2006). A person is in custody if there has been
a “formal arrest or restraint on freedom of movement of the degree associated with a formal
arrest.” Minnesota v. Murphy, 465 U.S. 420, 430, 104 S. Ct. 1136, 1144 (1984) (quotation
omitted); see also State v. Thompson , 788 N.W.2 d 485, 491 (Minn. 2010). If a person
makes a statement in a custodial interrogation without having received a Miranda warning,
the person’s statement is inadmissible. See Miranda, 384 U.S. at 471-72, 86 S. Ct. at 1626;
see also State v. Tibiatowski, 590 N.W.2d 305, 308 (Minn. 1999).
Menter’s ineffectiveness claim rests on the premise that he was subjected to a
custodial interrogation when Deputy Zimmerman asked him questions on the side of the
road, near where his truck was in the ditch. But that premise is contrary to an opinion of
the United States Supreme Court. In Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138
(1984), the Court stated that the concerns underlying the Miranda doctrine are not present
in an “ordinary” or “typical” traffic stop. Id. at 435-47, 104 S. Ct. at 3147-52. The Court
reasoned that, in such a stop, an officer who lacks probable cause but has a reasonable
suspicion of criminal activity “may detain [the driver] briefly in order to investigate the
circumstances that provoke suspicion.” Id. at 439, 104 S. Ct. at 3150 (quotation omitted).
In doing so, “the officer may ask the detainee a moderate number of questions to determine
his identity and to try to obtain in formation confirming or dispelling the officer ’s
suspicions.” Id. (citing Terry v. Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 1884 (1968)). The
Court further reasoned that the “noncoercive aspect of ordinary traffic stops prompts us to
hold that persons tempo rarily detained pursuant to such stops are not ‘in custody’ for the
purposes of Miranda.” Id. at 440, 104 S. Ct. at 3150. The Court concluded that the facts
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of that case did not present any reason to depart from the general rule that routine traffic
stops do not give rise to a custodial interrogation. See id. at 441-42, 104 S. Ct. at 3151-52.
The Minnesota Supreme Court has issued similar opinions , both before and after
Berkemer. In In re Welfare of M.A. , 310 N.W.2d 699 (Minn. 1981), which was decided
before Berkemer, the supreme court concluded that a juvenile was not subjected to a
custodial interrogation when state troopers “questioned him on the highway near the
stopped car” and, thus, “a Miranda warning was not then required.” Id. at 700. In State v.
Herem, 384 N.W.2d 880 (Minn. 1986), which was decided after Berkemer, a deputy sheriff
stopped a motorcyclist and asked him several questions, such as whether he knew that he
was speeding, whether he had seen the patrol car, and wh ether he had been drinking. Id.
at 881. The supreme court reasoned that the stop was not “the functional equivalent of a
formal arrest” because it “involved only a short period of time, and it was not until
defendant failed the preliminary breath test th at he was informed that his detention would
not be temporary.” Id. at 883. Similarly, in State v. Kline, 351 N.W.2d 388 (Minn. App.
1984), a deputy sheriff found a vehicle “stuck in the ditch” and engaged in “general on-site
questioning” of the vehicle’s driver, asking questions such as, “‘Are you the driver?’,
‘Have you been drinking?’, ‘How much?’ ” Id. at 389-90. This court concluded, “The
deputy violated no rights of the defendant by not giving him a Miranda warning.” Id. at
390.
In this case, the deputies detained Menter for investigatory purposes after observing
that his truck was in a ditch and that he appeared to be intoxicated. There is no dispute that
Deputy Zimmerman had a reasonable suspicion of criminal activity, and his quest ions of
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Menter were appropriate for a brief investigatory detention. The questions that Deputy
Zimmerman asked were similar to the questions asked in Herem and Kline. See Herem,
384 N.W.2d at 881, 883; Kline, 351 N.W.2d at 390. At the time, the circumstances did not
indicate a “formal arrest or restraint on freedom of movement of the degree associated with
a formal arrest.” See Murphy, 465 U.S. at 430, 104 S. Ct. at 1144. Accordingly, Menter
was not subjected to a custodial interrogation, and a Miranda warning was not required.
In general, an attorney’s performance is not deficient if the attorney does not object
to evidence that is not inadmissible . See State v. Asfeld , 662 N.W.2d 534, 546 (Minn.
2003). The well-established caselaw described above provided Menter’s trial attorney with
ample reasons for not mov ing to suppress the state’s evidence that Menter admitted to
drinking before he drove into the ditch and not object ing to the evidence when it was
introduced at trial. Thus, Menter cannot establish that his trial attorney’s performance was
deficient.
In sum, the post -conviction court did not err by denying Menter’s post -conviction
petition.
Affirmed.