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This opinion will be unpublished and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
A17-1232

State of Minnesota,
Respondent,

vs.

Casimir Robert Krithers,
Appellant.

Filed July 9, 2018
Affirmed
Rodenberg, Judge

St. Louis County District Court
File No. 69DU-CR-15-1596

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

Mark S. Rubin, St. Louis County Attorney , Sharon N. Chadwick, Assistant County
Attorney, Virginia, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Halbrooks, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Casimir Robert Krithers appe als his conviction fo r felony domestic
assault, arguing that the state violated his Sixth Amendment right to counsel by recording

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his jail phone calls with his attorney, and then transferring the recordings to a compact disk
that was delivered to the prosecutor. Appellant further claims that his waiver of the right
to counsel was invalid. Appellant also argues in a pro se supplemental brief that the state’s
conduct violated his Fourth and Fifth Amendment rights. We affirm.
FACTS
This case, which was tried on stipulated facts in Marc h 2017, came about after a
Douglas County, Wisconsin, 911 dispatcher received a call on May 14, 2015. The caller
reported an incident of domestic assault in Duluth. This phone ca ll was recorded. The
dispatcher realized a short time into the call that it should be transferred to the St. Louis
County, Minnesota, 911 dispatcher. The victim repeated her report to the St. Louis County
dispatcher, who also recorded the phone call. The recording of the transferred call resulted
in parts of the same call having been recorded by the two departments.
Law enforcement responded to this call in Duluth and went to the site of the reported
assault. The responding officers spoke to the victim, who said that appellant had physically
assaulted her while she was in his car. She and appellant had driven to a grocery store
parking lot where he purchased some metham phetamine. The victim stated that she
became upset with appellant. When she expressed her displeasure, appellant punched her
in the face six or seven times. She also re ported that when she called 911 from the car,
appellant tried to grab her phone. The victim eventually got out of the car while still on

3
the phone with the 911 operator. The state charged appe llant with one count of felony
domestic assault for this incident.1
On September 24, 2015, the prosecutor requested that Du luth Police Investigator
Westerman do follow-up investigation, includin g obtaining the recordings of appellant’s
jail calls. After this request went without response, the prosecutor again contacted the
investigator on September 30 and sent Investigator Westerman another email noting that,
in the body camera video, the victim told the responding officers that she had tried to call
911 and was on the phone until appellant ripped it away from her, and then called 911 again
after she got out of the car. The prosecut or requested that Investigator Westerman
determine whether a second 911 call recording exists. Investigator Westerman responded
on September 30, 2015, stating that he had not gotten to any of these tasks and would “have
to just dedicate a day” to doing follow-up work for this case. The prosecutor also requested
on October 1 that Investigator Westerman interview a possible defense witness.
As of October 1, Investigator Westerman had not yet completed any of the requested
follow-up investigation, but had created a list of follow-up tasks that had been requested
by the prosecutor. These task s included speaking with the victim’s probation officer,
contacting Douglas County dispatch to check for a second 91 1 call, contacting the victim
about medical treatment, obtaining the recordi ngs of appellant’s ja il phone calls, and
conducting a follow-up in terview with a newly identified de fense witness. On that day,
Investigator Westerman did the follow-up investigation.

1 Appellant was also charged in the same complaint with other charges, which were severed
before trial and resolved separately. The other charges are not relevant to this appeal.

4
Investigator Westerman first requested appellant’s jail phone calls using appellant’s
jail ID number. The jail phone system records all inmate telephone calls but is supposed
to be set up so that inmate calls to and from attorneys are either not recorded or are flagged,
so that state agents do not lis ten to those calls. The inve stigator downloaded all of
appellant’s calls three-minutes or more in duration. 2 He downloaded 52 calls and copied
the recordings to compact disks. Investigator Westerman then randomly opened one call
file and listened until he heard dial tones, to make sure it downloaded correctly. He
determined that the files had been successfully transferred to the disks, and did not listen
any further to the phone calls. He also printed out a list containing details about the jail
phone calls, such as the time they were made and the numb er dialed. Investigator
Westerman completed this work at about 9:15 or 9:30 a.m. on October 1. He then
personally delivered two identical disks and lis ts of appellant’s jail phone calls to the
prosecutor at the courthouse before attending a prescheduled 11:00 a.m. meeting with the
victim’s probation officer. Investigator West erman had not listened to the substance of
any call and was unaware that appellant’s calls to attorneys were included on the disks.
Investigator Westerman continued his follow-up investigation on October 1 by
interviewing the victim’s probation officer at 11:18 a.m. The probation officer explained
that he had met with the victim on May 24, 2015, and that the victim told him that appellant
had punched her in the face several times. Th e probation officer also gave Investigator

2 The investigator downloaded only calls of at least that length because the first few minutes
of each call usually consists of automated recordings and the dialing process. Calls shorter
than three minutes usually have no conversation.

5
Westerman a phone number for the victim and called her from his office with the
investigator present. Investigator Westerma n asked the victim if she had made multiple
911 calls on the date of the incident. The victim reported that she had tried to call 911
twice, had been unable to finish dialing on the first attempt, but completed the call on the
second try. The investigator no ted in his report that the victim “did not elaborate further
as to how or why the first call had not been successfully dialed” and that he “did not think
of it at the time, and failed to ask clarifying questions in that regard.” Investigator
Westerman continued with the other requested follow-up investigation tasks throughout
the day.
Later on October 1, the prosecutor looked through the list of jail phone calls given
to her by Investigator Westerman. She im mediately recognized appellant’s attorney’s
phone number on that list. Th e prosecutor made a note next to each of the listed calls to
appellant’s attorney. She then emailed Investigator Westerman at 1:05 p.m. on October 1
explaining that, of the 52 recorded calls she received from the investigator, only two were
calls that were not between appellant and his attorney. The prosecutor emailed appellant’s
attorney at 1:11 p.m. to inform her that the prosecutor had accidentally received appellant’s
privileged phone calls and “imm ediately destroyed” the stat e’s copy of th e disk. The
prosecutor sent the second disk to appellant’s attorney that same afternoon. The prosecutor
did not listen to any of the phone calls between appellant and his attorney and “ha[s] never
received any information about any conversations” between defense counsel and appellant.
Investigator Westerman replied to the prosecutor at 2:34 p.m., stating that he delivered to
the prosecutor all of appellant’s calls that were long enough to be a conversation. The

6
prosecutor immediately responded, stating that she could not have th e attorney calls and
requesting a separate disk containing only the nonattorney calls.
The St. Louis County Jail, where appella nt was being held, does not monitor jail
calls to attorneys. Jail staff is not supposed to have access to those calls. The phone system,
if functioning properly, is supposed to monito r any call that is not listed as private.
Attorney calls are private. In May 2015, the jail switched vendors for its phone systems
and began using a new vendor, Reliance.
On October 1, 2015, the jail administrator, after learning that appellant’s jail phone
calls to his attorney had been recorded, alerted the informa tion-technology sergeant of a
potential problem with the phone system. The sergeant logged onto the Reliance software
and noticed that he was able to play all of the calls made by appellant, including private
calls. The sergeant immediately called Reliance to report this issue. A Reliance employee
called back 15 minutes later to tell the sergea nt that new software had been uploaded to
correct the issue. Although Reliance had identified this problem on September 30, 2015,
St. Louis County Jail staff were not notified of it until October 1.
Appellant requested an evidentiary h earing concerning the recording and
downloading of his jail phone calls to his attorney. Appellant moved for dismissal of the
charges against him, arguing that the state violated his constitutional rights by what it did.
The district court found that the state did not violate appellant’s constitutional rights and
denied appellant’s motion to dismiss. Appella nt attempted to appeal the district court’s
denial of his motion to dismiss, but we denied discretionary review of the pretrial order,

7
stating that appellant “can raise the issue involving the recording of his jail phone calls in
a direct appeal from judgment if he is convicted after a trial.”
Appellant then petitioned the district court for a writ of habeas corpus. The district
court denied appellant’s petiti on for writ of habeas corpus, determining that the petition
was an attempt to have the court reconsider its December 29, 2015 order denying his
motion to dismiss, stating that the court “does not believe that a petition for habeas corpus
is the proper venue to challenge the December 29th decision.”
Appellant petitioned the Minnesota Supreme Court for review of our order denying
discretionary review, which the supreme cour t returned to him to cure procedural
infirmities. Appellant also petitioned the district court “f or reconsideration” of its
December 29 order denying dismissal of the charges against him. The district court denied
this request. Appellant also appealed the dist rict court’s denial of his petition for habeas
corpus. We affirmed the district court’s order denying the petition for habeas corpus, and
the supreme court denied review. Krithers v. State , No A16-0829, 2 016 WL 6395337
(Minn. App. Oct. 31, 2016), review denied (Minn. Dec. 27, 2016).3
Appellant also petitioned the district court to allow him to proceed pro se, stating
that part of his reason fo r discharging his attorney was the jail-phone-call issue. 4 The
district court granted that petition, finding that appellant’s waiver of his right to counsel

3 Appellant also appears to have petitioned the United States District Court for the District
of Minnesota for a writ of habeas corpus, which was denied.

4 Appellant also expressed concern about his la wyer having a conflict of interest because
the attorney had been reassigned for a portion of his case.

8
was voluntary. The parties then submitted stipulated facts to the court for trial. At the
hearing to present the district court with the stipulated facts, the state noted that it had
received that morning a second, previously undiscovered, 911 call from Douglas County,
Wisconsin, dispatch, after the prosecut or personally requested those records. 5 Appellant
argued that Investigator Westerman had no credibility because th e investigator had
previously stated that he looked for a second 911 call and had been told that none existed.
The district court received the second Douglas County 911 recording into evidence.
The district court found appellant guilty of felony domestic assault after reviewing
the stipulated facts and appe llant’s written arguments. The district court sentenced
appellant to 36 months in prison.
This appeal followed.
D E C I S I O N
I. The district court did not err in det ermining that appellant’s Sixth Amendment
rights were not violated by the record ing and download of appellant’s jail
phone calls to his atto rney, where the prosecutor promptly disclosed the
mistaken recording and no state agent listened to the recorded calls.

Appellant argues that the district cour t erred in concluding that his Sixth
Amendment rights were not violated by Investigator Westerman’s download of appellant’s
jail phone calls to his attorney.
We review the factual findings in the dist rict court’s pretrial order on a motion to
suppress for clear error. State v. Ortega, 770 N.W.2d 145, 149 (M inn. 2009). “Findings

5 The prosecutor explained that she had trusted that her investigator looked for the call
previously and that there had been some confusion over whether a second call even existed
based on the victim’s prior statements about only making one call.

9
of fact are clearly erroneous if, on the entire evidence, we are left with the definite and firm
conviction that a mi stake occurred.” State v. Andersen , 784 N.W.2d 320, 334 (Minn.
2010). We review the district court’s lega l determinations, including those concerning
claims of constitutional violations, de novo. Ortega, 770 N.W.2d at 149.
A criminal defendant has a constitutional ri ght to counsel. U.S. Const. amends. VI,
XIV; Minn. Const. art 1, § 6. While “[t]he attorney-client privilege is a statutory right . . .
not a constitutional right,” the supreme court has recognized that “in some situations
government interference with the confidenti al relationship between a defendant and his
counsel may implicate the constitutional right to counsel.” Andersen, 784 N.W.2d at 333
(citation omitted).
The Minnesota Supreme Court has recognized that “the act of recording, but not
listening to, attorney-client ph one conversations” might intrude into the attorney-client
relationship, but stated that “such an intrus ion does not automatica lly translate into a
violation of a defendant’s right to counsel.” Id. at 333-34. The supreme court paraphrased
the United States Supreme Court’s holding in Weatherford v. Bursey that “an intrusion into
the attorney-client relationship, standing alone, does not, as a matter of law, constitute a
violation of the Sixth Amendment.” Id. at 333 (citing Weatherford v. Bursey , 429 U.S.
545, 558, 97 S. Ct. 837, 845 (1977)). The Minnesota Supreme Court has also recognized
that “[t]he federal courts of appeals agree that a defendant claiming a violation of the right
to counsel must show something in addition to an intrusion.” Id.
In Andersen, the supreme court explained that th e district court’s factual findings
supported the conclusion that the defendan t’s constitutional right to counsel was not

10
violated by the monitoring and recording of hi s phone calls to his a ttorney’s cell phone.
Id. at 334. It reasoned that there was “no indi cation that the intrusions were intentional,
that evidence presented at trial was produced by the intrusions, that the prosecution
received confidential information about trial preparations or defense strategy, or that any
information in the ca lls was used in any way to [t he defendant]’s detriment.” Id. These
are the same factors the United Stat es Supreme Court considered in Weatherford in
concluding that the defendant had failed to establish a constitutional violation. 429 U.S. at
554-58, 97 S. Ct. at 843-45. But the supreme court “ha[s] not articulated a standard that a
defendant, or the State, must show to prevail on a claim that an intrusion into the attorney
client relationship amounted to a violation of the right to counsel.” Andersen, 784 N.W.2d
at 333. Since Andersen, the supreme court has again noted the lack of such a standard and
declined to announce one. State v. Taylor, 869 N.W.2d 1, 21 (Minn. 2015).
The incompletely articulated Andersen standard is sufficient to resolve this case.
The district court found as a fact that, on Ma y 15, 2015, the prosecut or requested further
investigation. The district court also found that Investigator Westerman did not complete
this investigation immediately, but instea d followed his normal practice of waiting to
investigate until closer to trial. The district court found that the pr osecutor requested on
September 24 that the investigator obtain appellant’s jail calls and prior police reports; that,
after inquiry from defense counsel, the pros ecutor requested on September 25 that the
investigator obtain body-camera footage, submit a report on his interview with the victim,
and obtain the victim’s medical records; and that, on September 30, the prosecutor followed
up on these requests and additionally requested that the investigator look for a second 911

11
call. The district court further found that Investigator Westerman worked on these tasks
on October 1, 2015, and downloaded to a disk appellant’s jail phone calls that morning.
Based on these findings and the record eviden ce, the district court found that “nothing
happened during the relevant time period to suggest that the prosecution was pursuing
angles that were new or different or that had been suggested in the calls,” and that, of the
follow-up items, “none arose or were suggeste d for the first time when the attorney calls
were accessible.” The district court’s findings of fact are amply supported by the record.
The district court credited th e testimony of the state’s witn esses that none of them
listened to the substance of any appellant’s priv ileged jail calls. It further found that “the
prosecution’s actual access to [appellant]’s attorney client ca lls was transitory” and that
“no one could have listened to all of the recorded phone calls in the time investigators had
them.” The district court also specifically found that the recording of appellant’s attorney
calls by the jail was inadvertent, that the system malfunction was unknown to the jail until
after this incident, that the r ecording of attorney calls was unintentional, that the calls do
not provide insight into appellant’s trial strategy,6 and that “[t]he timing of the accessibility
of the calls, the length of the calls, and the follow up investigation being requested do not
suggest that the State gleaned any valuable information that could be used to [appellant]’s
detriment.” Here again, the district court’s findings are amply supported by the record.
Because the state agents never listened to the recorded calls, appellant suffered no prejudice

6 The district court listened to the recorded calls as part of its comprehensive review of the
record. It found that nothing of strategic or other value to the state was included in the
recordings.

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from the recording and download of his jail phone calls, and there was no Sixth
Amendment violation.
II. The record is insufficien t to determine whether appe llant voluntarily waived
his right to counsel.

Appellant also argues that the recording and downloading of his jail calls caused
him to believe that his calls to his attorney would not remain private, forcing him to
involuntarily waive his right to counsel.
This issue was not raised to or decided by the district court. We generally will not
consider matters not argued to and co nsidered by the district court. Roby v. State , 547
N.W.2d 354, 357 (Minn. 1996). “This rule is not absolute, however, and we may address
an issue in the interests of ju stice if addressing the issue w ill not work an unfair surprise
on a party.” State v. Gauster , 752 N.W.2d 496, 508 (Minn. 2008) (quotation omitted).
“But the record must permit us to address such an issue.” Id. (citing Minn. R. Crim. P.
29.04, subd. 6). A direct appeal is an inappr opriate means for allegi ng errors that were
never presented to or consider ed by the district court when the grounds for the challenge
go outside the record on appeal. State v. Newcombe, 412 N.W.2d 427, 430 (Minn 1987).
Such arguments “are a collatera l attack upon the judgment whic h should be presented, if
at all, at the [district] court level by petition for post conviction relief.” State v. Tamminen, 282 Minn. 523, 524, 162 N.W.2d 369, 369 (1968).
Based on the record before us, we are una ble to determine, and reach no decision
on, whether appellant’s waiver of his right to counsel was rendered invalid by appellant’s
belief that his communications with counsel were impaired by the jail-phone-call recording

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such that he no longer believed he could rely on his conversations with his lawyer
remaining private. Therefore, the issue of whether appellant’s waiver of his right to
counsel is invalid is preserved for postc onviction proceedings, sh ould appellant later
initiate such a petition.
III. Appellant’s pro se arguments are without merit.
Appellant argues in his pro se brief that the recording and downloading of his jail
phone calls to his attorney violated his Fourth and Fifth Amendment rights.
Appellant first argues that Investigator We sterman’s download of appellant’s jail
phone calls constitutes an improper seizure under the Fourth Amendment. Appellant cites
to a number of cases discussing the Fourth Amendment generally, but provides no case law
supporting his assertion that the recordin g and downloading of his jail phone calls
constitutes a seizure. The inmate handb ook at the jail provides that “[a]ll non
attorney/client privileged phon e calls completed in the jail may be monitored and/or
recorded.” The policy provides clear notice that inmate phone calls are not completely
private. Courts have also acknowledged that incarcerated prisoners have reduced
expectations of privacy. See State v. Bartylla, 755 N.W.2d 8, 17 (Minn. 2008) (stating that
an incarcerated prisoner has a lower expectation of privacy than a probationer, parolee, or
conditional releasee); see also Hudson v. Palmer, 468 U.S. 517, 524, 104 S. Ct. 3194, 3199
(1984) (stating that “while persons imprisone d for crime enjoy many protections of the
Constitution, it is also clear that imprisonment carries with it the circumscription or loss of
many significant rights”). Appellant has faile d to establish that his Fourth Amendment

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rights were violated by the recording and downloading of his jail phone calls, after notice
to him that his nonprivileged calls would be recorded.
Appellant also argues that the recording and downloading of his jail phone calls
violated his Fifth Amendment rights under Miranda v. Arizona , 384 U.S. 436, 86 S. Ct.
1602 (1966). Miranda applies to “custodial interrogation[s].” 384 U.S. at 444, 86 S. Ct at
1612. Appellant was certainly in custody while he was in the St. Louis County Jail. But
“interrogation” refers to “express questioning” or “words or actions on the part of the police
. . . that the police should know are reasonabl y likely to elicit an incriminating response
from the suspect.” Rhode Island v. Innis , 446 U.S. 291, 301, 1 00 S. Ct, 1682, 1689-90
(1980). Appellant’s making his own jail phone calls and speaking during those calls does
not constitute interrogation for the purposes of Miranda, and Appellant’s Fifth Amendment
claim is without merit.
We see no merit to any of appellant’s additional pro se arguments.
Affirmed.