State of Minnesota,

1
STATE OF MINNESOTA

IN SUPREME COURT

A22-0868

Hennepin County Hudson, J.

State of Minnesota,

Respondent,

vs. Filed: August 2, 2023
Office of Appellate Courts
Brent Douglas Buchan,

Appellant.

________________________

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Mary F. Moriarty, Hennepin County Attorney, Adam E. Petras, Assistant County Attorney,
Minneapolis, Minnesota, for respondent.

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

________________________

S Y L L A B U S
1. The admission of a dying declaration does not violate a defendant’s Sixth
Amendment right to confrontation.
2. The district court did not err by finding that defendant knowingly,
intelligently, and voluntarily wa ived his previously invoke d Fifth Amendment right to
counsel.
2
3. There is no reasonable possibility that the admission of prior bad act evidence
significantly affected the verdict.
Affirmed.
O P I N I O N
HUDSON, Justice.
A jury found appellant Brent Douglas Bu chan guilty of first-degree premeditated
murder for the murder of Josh Boyce. Buchan was sentenced to life in prison without the
possibility of release. In this direct appeal, Buchan first argues that the district court
violated his Sixth Amendment right to co nfrontation when it admitted Boyce’s dying
declarations into evidence at the jury trial. He maintain s that our precedent providing an
exception to the Confrontation Clause for dy ing declarations was wrongly decided and
should be overruled. Buchan next argues th at the district court violated his Fifth
Amendment right to counsel when it admitted evidence of his statements to police officers.
After invoking his right to an attorney under the Fifth Amendment, Buchan contends that
he never validly waived his in voked right to counsel. Lastly , he argues that the district
court committed reversible error when it admitted Spreigl evidence related to a prior assault
charge into evidence at the jury trial. We affirm Buchan’s conviction.
FACTS
At approximately 12:10 a.m. on October 26, 2020, two Minneapolis police officers
received a dispatch reporting a shooting victim at a home on the 1700 block of Emerson
Avenue North. The officers’ body-worn camera s captured their resp onse. The officers
found the victim, Josh Boyce, lying in the entryway of hi s father’s home. Boyce’s father
3
was also present.1 The officers moved Boyce to the front walkway of the home to render
him aid. Boyce had several gunshot wounds to his chest and torso and had labored
breathing.
Boyce repeatedly called out that “Brenty got me” or “Brenty shot me.” Officers
struggled to understand him and asked, “Who did?” Boyce replied, “Brenty Buchan.” At
some point, Boyce said something along the lines of “my last breath” and, “I don’t wanna
die.” Boyce fell unconscious as he was placed in the ambulance. Despite receiving CPR
and other lifesaving attempts, he never regained consciousness. Boyce died on the evening
of October 26, 2020. His death was attri buted to multiple guns hot wounds and ruled a
homicide. An autopsy revealed that Boyce had THC, amphetamine, and methamphetamine
in his system at the time of his death.
A neighbor who lived on the 1700 block of Emerson Avenue North testified that on
the night of the murder, he heard gunshots and then someone saying, “I need help.” He
then looked out his window and saw someone trying to run away from a second person.
The second person shot at the other at least three times. He saw the shooter follow the
victim into the street and continue shooting. The shooter then ran back the way he came
from an alley. A few seconds later, the neighbor heard a car start and saw lights come on.2

1 Because Boyce’s father died before Buchan’s trial, Boyce’s father did not testify at
trial.

2 When responding officers asked about the shooter and the victim’s race, the
eyewitness initially identified them each as Black. He la ter told investigators that he had
a hard time identifying their faces and that th e shooter could have been wearing a mask.
Buchan is white. The State relied on the eyewitness’s te stimony primarily to show
premeditation and intent, as opposed to identity.
4
Another neighbor’s home surveillance ca mera partially captured the shooting,
although a garage and large tree obstructed much of the view. The footage showed that at
about 11:55 p.m. on October 25, 2020, one person walked down an alley towards the street,
and a few seconds later, another person followed closely behind. Multiple gunshots were
fired. A person started yelling, and then several more shots were fired. One person then
ran back down the alley in the direction the two came from. A video forensic specialist
enhanced the video, and the person heard yelling was heard saying, “I swear it wasn’t me.
I swear it wasn’t me, Brenty.”
Forensic scientists found eight discharged bullet cartridge casings and three unfired
casings in the alley. Each of the casi ngs was a 9-millimeter. Minneapolis police
investigated Boyce’s murder and learned that Boyce was a suspect in the September 29,
2020 murder of another man, J.S. Buchan was childhood friends with J.S. Buchan spoke
at J.S.’s memorial service, calling J.S. “his brother.” Boyce and J.S. also knew each other
and had a confrontation at Boyce’s house in early September 2020, shortly before J.S.’s
death. J.S. smacked Boyce ac ross the face. Boyce then po inted a gun at J.S. and his
girlfriend and fired it once. Neither J.S. nor his girlfriend were hit.
Buchan and Boyce communicated via cellphone and Facebook in the weeks before
Boyce’s death.
3 In some of the Facebook messages, Buchan discussed buying a “glock”4
from Boyce about a week before J.S.’s murde r. Boyce asked Buchan, “Can i ask u some

3 Buchan’s Facebook profile used the name “Prince Br ent.” Boyce’s Facebook
profile used the name “Drippy King Zaddy.”

4 A “glock” is a colloquial reference to a firearm.
5
thing, is this about the [J.S.] situation?” Bu chan replied, “I real ly don’t know about the
[J.S.] situation I just lost mine.”
On September 30, 2020, after J.S.’s deat h, Boyce tried to call Buchan through
Facebook several times. Buchan messaged Boyce, “Bro we ant gone talk about [] you no
what you did.” Boyce replied, “I didnt do shit u tripping cu z. It wasnt me I promise u
that.” Buchan then messaged Boyce on October 3, “You no I been knowing you all my
life bro you did some hole ass sh it bro.” Boyce replied, “On my kids that wasnt me.”
Buchan asked Boyce if he was staying at his dad’s house and said, “I know your location
bro.”
In later Facebook messages, Buchan told Boyce, “So I guess imma be coming find
you then.” Boyce messaged Buchan, “I didn’t kill [J.S.].” Buchan said, “Bro I got my kid
I’ll find out tho.” Boyce then described the early September 2020 confrontation that he
and J.S. had a few weeks earlier, when Boyce fired a gun in the direction of J.S. and his
girlfriend. Together, law enforcement took these messages to mean that Buchan suspected
Boyce of killing J.S.
On the night of his murder, Boyce messaged Buchan asking for a ride. Boyce had
initially asked his sister for a ride that night. Around 11 p.m., as his sister prepared to leave
to pick up Boyce, he told her that he no longer needed a ride because Buchan was going to
pick him up. The last record of communication between Buchan and Boyce was a
Facebook video call approximately 10 minutes before Boyce was shot.
After the shooting, officers obtained cellp hone-tower-location data for Buchan’s
phone number. The data show ed that Buchan’s cellphone was in the area where Boyce
6
was killed shortly before and shortly after th e shooting on October 25. Buchan cancelled
his phone number and changed to a new numb er on October 26, the day after Boyce’s
murder.
Buchan was arrested and brought in for questioning on November 16, 2020. Buchan
had two cellphones on him when he was arrested. Later searches of the cellphones revealed
internet searches related to the October 25 shooting. Buchan sear ched phrases such as
“Shooting in Minneapolis last night” the day after the shooting. A few weeks later, Buchan
searched “Joshua Lee William Boyce,” and “Man killed in North Minn eapolis.” He also
viewed several articles reporting Boyce’s murder.
Police executed a search warrant of Buchan’s home. There, police found an empty
gun magazine. The magazine was in a semiauto matic pistol found in a jacket pocket in a
bedroom. The bedroom door had a plaque reading “Brent” on it.
The record contains a record ing and partial transcript of Buchan’s November 16,
2020 police station interrogatio n with two investigators: Sergeant Olson and Sergeant
Metcalf. Sergeant Ols on read Buchan his Miranda rights, and Buchan immediately
requested his lawyer. Sergeant Olson replied, “that’s fine,” and “we’ll leave it at that.”
The officers then had Buchan stand and t ook his picture to record his height. 5 Buchan
continued to assert that he did nothing wro ng and asked questions such as “What’s going

5 In taking Buchan’s picture, recording hi s height, and answering his routine booking
questions, the officer did not engage in continued interrogation for Fifth Amendment
purposes. See State v. Heinonen, 909 N.W.2d 584, 591 (Minn. 2018); State v. Greenleaf,
591 N.W.2d 488, 497 (Minn. 1999); Rhode Island v. Innis , 446 U.S. 291, 301 (1980).
Buchan does not raise concerns about these c ontinued interactions and disputes only the
later, formal questioning.
7
on?”, “That means I’m being arrested?”, “What am I booked for?”, and “How long is this
gonna wait?” The officers responded to Buchan’s questions, telling him that he had been
booked for probable cause murder and describing some of the procedures to him. Sergeant
Olson eventually said, “We’re not gonna do this where you fish for information after you
say . . . you wanna talk to a lawyer.” Buchan replied, “Y’all can sit down. I’ll speak, but
I ain’t got nothing to say.” Sergeant Olson told Buchan that he did not want him to feel
“coerced.” He went through each of the Miranda warnings individually, asking Buchan
after each one, “Do you understan d that?” Buchan responded, “yeah” after each inquiry.
When Sergeant Olson asked, “Having these rights in mind do you want to talk to us right
now?” Buchan replied, “I’ll talk.” Sergeant Olson also made sure that Buchan understood
that at any point he could stop talking to the officers.
The officers questioned Buchan. Buchan sa id that Boyce and “K.J.” might have
been involved in J.S.’s murder. He said that he knew J.S. and Boyce, but he was closer to
J.S. Buchan repeatedly denied communicating with Boyce after J.S.’s death. He said that
he deactivated his Facebook account after Boyce’s murder because he was caught cheating
on his girlfriend. Sergeant Olso n testified at trial that when they asked Buchan about the
messages with Boyce, Buchan started sweating, stammering, and wiping his forehead.
In July 2021, a gran d jury indicted Buch an for first-degree premeditated murder,
Minn. Stat. § 609.185(a)(1) (2022), and second -degree intentional murder, Minn. Stat.
§ 609.19, subd. 1(1) (2022). Buchan move d to exclude Boyce’s dying declaration, 6 to

6 Under Minnesota Rule of Evidence 804( b)(2), an exception to the hearsay rule
exists: “In a prosecution for homicide or in a civil action or proceeding, a statement made
8
suppress his interview with police, and to exclude evidence of a prior assault against I.Y.
that occurred in April 2020. Buchan move d to exclude Boyce’s dying declaration as
unreliable hearsay because there was so much methamphetamine in Boyce’s system that
he could not perceive whether his death was imminent. He argued that given Boyce’s
toxicology report and Buchan’s inability to cross-examine him, the statements were too
unreliable to be admissible. The district court denied Buchan’s motion to exclude the
statements. It found that Boyce’s statemen ts were dying declarations because Boyce
believed he was about to die, and the statements related to the circumstances of his death.
The district court noted that Buchan’s objections to the statements based on their reliability
went to the weight of the evidence, not its admissibility.
Buchan also moved to suppress his statemen t to investigators, arguing that he did
not knowingly and intelligently waive his right to counsel after invoking the right. The
district court denied the motion. The district court found that the interrogation environment
was not coercive because Buchan did not have to wait for an extensive period of time, and
he had water and his phone. Although Buchan had properly invoked his right to counsel,
the district court found that the officers scrupulously honored his request. The district court
observed, however, that Buchan reinitiated the conversation wh en he asked the officers
about his arrest and the process going forward. Further, because the officers told him that
he was being booked for murder, the district court observed that Buchan was aware of what

by a declarant while believing that the declar ant’s death was imminent, concerning the
cause or circumstances of what the declaran t believed to be impending death.” Buchan
does not dispute that Boyce’s statements were dying declarations before this court.
9
the substance of the interrogation would be. The district court found that the officers
attempted to stop the conversation, but Buchan said he was willing to speak. The officer
then reread Buchan’s Miranda warnings line by line, asking if he understood each one.
Buchan replied, “yeah” after each right and said, “I’ll talk.” The district court therefore
found that Buchan had waived his right to counsel, and he did so knowingly, intelligently,
and voluntarily.
Lastly, the State sought to introduce evidence of a pr ior act committed by Buchan
as Spreigl7 evidence—namely, evidence of an April 2020 assault in which Buchan was
involved.8 The State gave notice of its intent to offer the evidence to prove identity, motive,
intent, and common scheme or plan. The Spreigl evidence included the following:
Buchan’s friend, K.W., was murdered about a year before Boyce’s death. On April 12,
2020—about six months after K.W.’s murder and six months before Boyce’s death—I.Y.
reported a shooting that had occurred the day before and identified Buchan as the shooter.
No one was injured in the shooting. Buchan allegedly shot at I.Y. because he believed
I.Y.’s brother, D.Y., was involved in the murder of K.W. and was look ing for him. I.Y.
provided investigators eviden ce of a phone call between he rself and Buchan, which was
ultimately presented at trial. In the call, Buchan said, “I got artillery,” and “I got a whole

7 This term comes from State v. Spreigl , 139 N.W.2d 167 (Minn. 1965); see also
Minn. R. Evid. 404(b) (providing the process for admitting evidence of prior acts).

8 At the time of Buchan’s first-degree murder trial, he was charged with
second-degree assault with a dangerous weapon but had not yet been tried. The charge
was dismissed after his first-degree murder conviction.
10
Taliban YNT behind me.”9 He also said, “if they want smoke,” which was taken to mean
“if they want a gun fight.” Law enforcemen t confirmed that Buchan ’s phone was in the
area of the shooting at the time based on cell tower data.
The district court ruled that the Spreigl evidence would be allowed. The district
court considered the five Spreigl requirements.10 The district court first determined that
the evidence was relevant to Buchan’s motive of retaliati on against someone he thought
was responsible for the death of a friend. It also found the evidence relevant to Buchan’s
intent and premeditation of shooting Boyce. The district court concluded that the evidence
was probative of identity because Buchan used the same sche me or plan in the assault
charge as the alleged murder. Clear and convincing evidence of the prior bad act was
present based on the complain t in the assault charge th at contained I.Y.’s report,
ShotSpotter data confirming the time and location of the shooting, and police verification
that Buchan was in the area at the time of the shooting. Lastly, the district court found that
the probative value of the evidence was not outweighed by its unfair prejudice.
At trial, the State introdu ced evidence of Boyce’s dying declaration identifying
Buchan as his shooter, Buchan’s statement to the investigators, and the April 2020 assault.
The jury found Buchan guilty of first-degree premedit ated murder and second-degree

9 “Taliban” and “YNT” are two gangs in North Minneapolis.

10 These requirements are: “(1) the State mu st provide notice of its intent to use the
evidence; (2) the State must clearly indicate what the evidence is being offered to prove;
(3) there must be clear and convincing evidence that the defendant participated in the other
act; (4) the Spreigl evidence must be relevant and material; and (5) the probative value of
the evidence must not be outweighed by the potential prejudice.” State v. Clark ,
755 N.W.2d 241, 260 (Minn. 2008).
11
intentional murder. The dist rict court convicted Buchan of first-degree premeditated
murder and imposed the mandato ry sentence of life in pris on without the possibility of
release. The district court left the second-degree intentional murder charge unadjudicated.
Buchan now appeals to this court.
ANALYSIS
On appeal, Buchan contends that he is entitled to reversal of his convictions and a
new trial. First, he asserts that the distri ct court violated his Sixth Amendment right to
confrontation when it admitted Boyce’s dying declaration. Second, Buchan argues that the
district court violated his Fifth Amendment right to counsel when it admitted evidence of
his statement to investigators because he did not validly waive his invoked right to counsel.
Third, Buchan argues that the admittance of Spreigl evidence significantly affected the
verdict. We address each argument in turn.
I.
The Confrontation Clause, found in the United States and Minnesota Constitutions,
provides in pertinent part: “In all crimin al prosecutions, the acc used shall enjoy the
right . . . to be confronted with the witnesses against him.” 11 U . S . C o n s t . a m e n d . V I ;
Minn. Const. art. I, § 6; see also Pointer v. Texas, 380 U.S. 400, 406 (1965) (making the
protections of the Confrontation Clause app licable to the states under the Due Process
Clause of the Fourteenth Amendmen t). The Supreme Court held in Crawford v.

11 The relevant language of the federal and state Confrontation Clauses is identical.
Buchan does not argue for a mo re expansive reading of the Minnesota Constitution than
the United States Constitution, so reliance on federal precedent is appropriate. See State v.
Tate, 985 N.W.2d 291, 297 n.5 (Minn. 2023).
12
Washington that testimonial statemen ts are inadmissible under the Confrontation Clause
when the declarant is unavailable and the de fendant did not have an opportunity to
cross-examine the declarant. 541 U.S. 36, 68 (2004). The Court noted that the only
exceptions to the right of confrontation are thos e that were established at the time of the
nation’s founding. Id. at 54.
Although the Supreme Court has not explici tly announced that dying declarations
are an exception to the right to confrontation, it has suggested in dicta that there may be
such an exception. In Crawford, the Court noted, “Although many dying declarations may
not be testimonial, there is authority for admitting even those that clearly are.” Crawford,
541 U.S. at 56 n.6. The Court declined to decide whether there was an exception for
testimonial dying declarations, but observed that “[i]f this exception must be accepted on
historical grounds, it is sui generis.” Id.
A year after Crawford, we considered whether the admission of a dying declaration
violates a defendant’s ri ght to confrontation in State v. Martin , 695 N.W.2d 578, 585
(Minn. 2005).12 We first acknowledged that footnote six of the Crawford decision did not
“squarely hold that an exception exists under Crawford for dying declarations.” Martin,
695 N.W.2d at 585. But we reasoned that the Crawford Court’s “statement that the
Confrontation Clause ‘is most naturally read as a reference to the right of confrontation at

12 Martin was decided before Davis v. Washington, 547 U.S. 813, 822 (2006), where
the Supreme Court clarified the meaning of te stimonial statements. To the extent that
Martin stated that the rule articulated in Ohio v. Roberts, 448 U.S. 56, 66 (1980), was still
applicable after Crawford, this part of the opinion has been abrogated. See State v. Her,
750 N.W.2d 258, 265 n.5 (Minn. 2008), cert. granted, judgment vacated, 555 U.S. 1092
(2009).
13
common law, admitting only th ose exceptions established at the time of the founding’
strongly suggests that because dying decl arations were a reco gnized common-law
exception at the time of the fo unding, there is no inherent conflict in continuing to
recognize them today.” Id. (quoting Crawford, 541 U.S. at 54). Put differently, we found
the dicta in footnote six of Crawford to be persuasive author ity for holding that the
admission of a testimonial dying declara tion does not violate a defendant’s Sixth
Amendment right to confrontation. Id. Buchan argues that Martin was wrongly decided
and should be overruled.
We review whether the admission of ev idence violates a defendant’s rights
under the Confrontati on Clause de novo. 13 State v. Caulfield , 722 N.W.2d 304, 308
(Minn. 2006). Buchan first asks us to overrule Martin. Under the principle of stare decisis,
we are reluctant to overrule our precedent unl ess there is a compelli ng reason to do so.
Wheeler v. State, 909 N.W.2d 558, 565 (Minn. 2018). But stare decisis is not an “inflexible
rule of law” that binds us to “unsound principles.” Oanes v. Allstate Ins. Co., 617 N.W.2d
401, 406 (Minn. 2000) (citation omitted) (internal quotation marks omitted).
Buchan argues that Martin was wrongly decided and should be overruled for three
reasons: (1) the Supreme Court has not specifically announced that dying declarations are
an exception to the Confrontation Clause; (2) an exception for dying declarations does not

13 The State argues that our re view should be limited to a plain error analysis because
Buchan forfeited his Confrontation Clause argument when he failed to raise it in the district
court. Having reviewed the record, we concl ude that the arguments made by Buchan in
the district court sufficiently raised his Confrontation Clause argument.
14
survive the rule announced in Crawford; and (3) the modern dying declaration exception
is not a historical common-law exception to the Confrontation Clause.
First, Buchan contends that we should not create an excep tion to the Sixth
Amendment until the Supreme Court announces that such an exception exists. The State
argues that dying declarations as an exception to the Confrontation Clause being an “open
question” does not undermine the reasoning in Martin.
The Supreme Court failing to announce a dying declaration exception does not
make Martin bad law. As Buchan acknowledges, nu merous state courts have interpreted
Crawford to suggest that dying declarations are an exception to the Confrontation Clause.14
And although Buchan points to numerous authorities holding that the Supreme Court is the
final arbiter of the meaning of the United States Constituti on, he fails to present any
authority stating that the states are barred from constitutional interpretations that do not
conflict with those of the Supreme Court. Th is argument therefore does not provide us
with a compelling reason to overrule Martin.
Next, Buchan argues that Crawford requires that declarants of testimonial
statements be subject to cross-examination. He asserts that Crawford directly rejected the
argument that statements are admissible because of their reliability. The State contends

14 For example, the Supreme Court of New Jers ey recently held that dying declarations
are an exception to confrontation based on “[t] he historical record, the United States
Supreme Court’s pre- Crawford acceptance of dying declarati ons as an exception to the
Confrontation Clause, footnote six of Crawford, and Giles’s tacit acceptance of the
exception.” State v. Williamson, 249 A.3d 478, 492 (N.J. 2021); see also Commonwealth
v. Nesbitt, 892 N.E.2d 299, 311 (Mass. 2008); State v. Lewis, 235 S.W.3d 136, 148 (Tenn.
2007).
15
that the Supreme Court’s holding in Giles v. California, 554 U.S. 353 (2008), undermines
this argument. Giles held that unconfronted, out-of-court statements are admissible if they
fall into an exception that was established at the time of the nation’s founding. Id. at 358.
We analyzed the holding in Crawford in our Martin decision. Martin, 695 N.W.2d.
at 584–85. We declined to decide whether the statements by the victim, who had been shot
in the chest, were testimonial. Id. Instead, we determined that dying declarations were a
specific exception to the Crawford rule. Id. at 585. We relied in part on the Supreme
Court’s statement that “[t]he existence of [t he dying declaration] exception as a general
rule of criminal hearsay law cannot be disputed. Although many dying declarations may
not be testimonial, there is authority for admitting even those that clearly are.” Id. (quoting
Crawford, 541 U.S. at 56 n.6). We considered Crawford and its requirement of
cross-examination for testimonial statements but determined that dying declarations are an
exception to the rule. Id.
Giles also supports this conclu sion. Three years after Martin, the Supreme Court
observed in Giles that, under Crawford, “the Confrontation Clause requires that a
defendant have the opportunity to confront the witnesses who give testimony against him,
except in cases where an exception to the confrontation right was recognized at the time of
the founding.” 554 U.S. at 357 (emphasis added). The Court therefore noted that there
will be some instances, even after Crawford, where unconfronted te stimonial statements
will be admissible. In fact, the Court specifically mentioned dying declarations as such an
exception. Id. at 358–59.
16
Justice Scalia’s concurrence in Ohio v. Clark, 576 U.S. 237, 253 (2015), which was
joined by Justice Ginsberg, also supports our analysis in Martin. In his concurrence, Justice
Scalia wrote:
Defendants may invoke their Confronta tion Clause rights once they have
established that the state seeks to introduce testimonial evidence against them
in a criminal case without unavailab ility of the witness and a previous
opportunity to cross-examine. The burden is upon the prosecutor who seeks
to introduce evidence over this bar to prove a lo ng-established practice of
introducing specific kinds of evidence, such as dying declarations, see
Crawford, supra, at 56, n.6, for which cross- examination was not typically
necessary.

Clark, 576 U.S. at 253 (Scalia, J., concurring ). Based on these authorities, we decline
Buchan’s invitation to overrule Martin on this basis.
Lastly, Buchan argues that the modern theory and rationale for the admissibility of
dying declarations today is at odds with the original rationale animating the exception. He
argues that, in Giles, when considering whether the forfe iture-by-wrongdoing doctrine is
an exception to the Confrontation Clause, the Supreme Court functionally required that the
theory behind the modern exception must be identical to the theory behind the exception
that existed at common law. See Giles , 554 U.S. at 358. He contends that the dying
declaration exception was historically accepted based on religious beliefs that “divine
judgment for lying” ensured that the dyi ng person would speak the truth. But dying
declarations today, according to Buchan, are admissible due to necessity and reliability.
The State argues that although there may ha ve been religious “motivations” behind the
historical dying declaration exception, religious motivations are not a required element of
the exception. We agree with the State.
17
In Giles, the Supreme Court had previously acknowledged two types of testimonial
statements that were admitted at common law even if uncon fronted: dying declarations
and statements satisfying the doctrine of forfeiture by wrongdoing.15 554 U.S. at 358–59.
The Court simply clarified that the forfeiture-by-wrongdoing doctrine is not applicable in
every instance that a defendant causes a witne ss to be unavailable fo r cross-examination.
Id. at 359–60. Rather, the ex ception applied at common la w only when there was a
showing that the defendant “intended to prevent a witness from testifying.” Id. at 361.
We reject Buchan’s argument based on the rationales of the dying declaration
exception as well. The religious rationales for the dying declaration exception at common
law are just that—rationales—not elements. And the religious rationales were themselves
rooted in the idea that a person would not lie before death, making the statements reliable.
See Idaho v. Wright, 497 U.S. 805, 820 (1990); see also R. v. Osman (1881) 15 Cox Crim.
Cas. 1, 3 (Eng. N. Wales) (“[N]o person, wh o is immediately going in to the presence of
his Maker, will do so with a lie on his lips.”). Modern dying declar ations are likewise
admissible due to their presumed reliability, so long as the declarant believed their death
was imminent. Minn. R. of Evid. 804(b)(2).

15 Buchan cites two federal district c ourt cases for the proposition that dying
declarations are not an exception to the Crawford rule because they are not subject to
cross-examination. Importantly, both cases were decided before Giles, where the Supreme
Court made clear that some unconfronted st atements are still admissible under the Sixth
Amendment. See United States v. Mayhew , 380 F. Supp. 2d 961, 965 & n.5 (S.D.
Ohio 2005); United States v. Jordan , No. CRIM. 04–CR–229–B, 2005 WL 513501, at
*3–4 (D. Colo. Mar. 3, 2005). And one case rejected dying declarations as an exception to
the Confrontation Clause based on their reliability. Mayhew, 380 F. Supp. 2d at 965 n.5.
18
Buchan has not articulated a compelling reason to overrule Martin. We uphold our
decision in Martin and reaffirm that dying declara tions are an exception to the
Confrontation Clause. Buchan does not challenge the district court’s finding that Boyce’s
statements were dying declarations. The dist rict court therefore did not err by admitting
evidence of Boyce’s dying declarations.16
II.
Buchan next argues that th e district court erred in de nying his motion to suppress
his statements to police because he did not validly waive his invoked right to counsel. We
review factual determinations related to a su spect’s invocation of his right to counsel for
clear error. State v. Ortega , 798 N.W.2d 59, 70 (Minn. 2011). We conduct an
“independent subjective determination” of whether the suspect voluntarily waived his right
to counsel. State v. Earl, 702 N.W.2d 711, 719 (Minn. 2005).
“The United States and Minnesota Constituti ons protect a defendant’s right to be
free from compelled self-incrimination.” Ortega, 798 N.W.2d at 67; see U.S. Const.
amend. V; Minn. Const. art. I, § 7 (both prov iding that no “person shall . . . be compelled
in any criminal case to be a witness against himself”). In Miranda v. Arizona, 384 U.S.
436, 444–45 (1966), the Supreme Court required procedural safeguards to protect suspects
in custodial interrogation from compelled self-incrimination. Specifically, a suspect “must
be warned that he has a right to remain silent, that any statement he does make may be used

16 Because we hold that dying declarations are an exception to the Confrontation
Clause, we do not address the parties’ argum ents regarding whether Boyce’s statements
were testimonial.
19
as evidence against him, and that he has a right to the presence of an attorney, either
retained or appointed.” Id. at 444. The suspect can waive these rights if his waiver is
“made voluntarily, knowingly and intelligently.” Id. But if the suspect invokes his right
to counsel, “the interrogation must cease until an attorney is present.” Edwards v. Arizona, 451 U.S. 477, 485 (1981) (quoting Miranda, 384 U.S. at 474).
Law enforcement can question a suspect after he invokes his right to counsel if the
suspect reinitiates the conversation and properly waives his invoked right to counsel. State
v. Staats, 658 N.W.2d 207, 213 (Minn. 2003). The relevant analysis involves a three-step
inquiry: (1) whether the suspect invoked his right to counsel before questioning;
(2) whether the suspect reiniti ated conversation with the po lice; and (3) whether the
suspect properly waived his invoked right to counsel. Id. Buchan challenges only the third
step—whether he properly waived his invoked right to counsel.
The State bears the burden of proving that, “by a fair preponderance of the evidence
based on a totality of the circumstances,” the suspect’s waiver of hi s previously invoked
right to counsel was knowing, intelligent, and voluntary. Earl, 702 N.W.2d at 718. Factors
relevant to the totality-of-the-circumstances inquiry include: “the defendant’s age,
maturity, intelligence, education, experience, ability to comprehend , lack of or adequacy
of warnings, length and legality of detenti on, nature of the in terrogation, physical
deprivations, and access to counsel and friends.” State v. Miller , 573 N.W.2d 661, 672
(Minn. 1998). We have held that a suspec t continuing to answer questions after law
enforcement officers reread the suspect his Miranda warnings was not a valid waiver when
the officers did not specifically discuss the previously invoked right. Staats, 658 N.W.2d
20
at 214. In other words, a waiver of an invoked right to counsel cannot be inferred from the
suspect’s conduct alone.
Here, the totality of the circumstances shows that Buchan knowingly, intelligently,
and voluntarily waived his previously invo ked right to counsel. After ending the
interrogation, Sergeant Olson specifically reminded Buchan that he had invoked his right
to counsel in response to his questions, noting “you already asked to talk to a lawyer.”
When Buchan continued to inquire, Sergeant Olson said that they would not let Buchan
“fish for information” and again reminded Buchan that he had asked to speak with a lawyer.
Buchan stated, “Y’all can sit dow n. I’ll speak.” Sergeant Ol son then reread Buchan his
Miranda warnings and asked Buchan after each ri ght if he understood it. Buchan replied
“yeah” after each inquiry. Afte r reading the warnings, Serg eant Olson asked, “Having
these rights in mind do you want to talk to us right now?” Buchan replied, “I’ll talk.”
Sergeant Olson also made sure that Buchan understood that at a ny point he could stop
talking to the officers.
This exchange went far beyond the law en forcement officers merely rereading the
suspect his Miranda warnings before continuing the interrogation. Sergeant Olson
repeatedly reminded Buchan that he had invo ked his right to counsel, to which Buchan
affirmatively responded that he would talk. The officers then reread Buchan his Miranda
warnings and sought affirmative, verbal confirmation that he understood each right. And
all of this occurred just mi nutes after Buchan invoked his right and the officers
unequivocally ceased the interrogation. No inference need be drawn that Buchan waived
his invoked right based on his conduct or actions alone.
21
In sum, the investigators referenced that Buchan had invoked his right to counsel,
reviewed his Miranda rights line by line, and informed him for what he was being booked.
Buchan had been read his Miranda rights before and understood them, as evidenced by his
almost immediate invocation of his right to counsel. The totality of the circumstances show
that his subsequent waiver of the right to counsel was knowing, intelligent, and voluntary,
and the district court therefore did not err in denying Buchan’s motion to suppress his
statement to police.
III.
Lastly, Buchan argues that th e district court abused its discretion by allowing the
State to introduce evidence of the April 2020 assault, including I.Y.’s phone call to police,
as Spreigl evidence. We review a district court’s decision to allow Spreigl evidence for an
abuse of discretion. State v. Griffin, 887 N.W.2d 257, 261 (Minn. 2016). The defendant
“bears the burden of showing an error occurred and any resulting prejudice.” Id. If a
district court erroneously admitted Spreigl evidence, we must determine whether there is a
reasonable possibility that th e evidence significantly affected the verdict. State v. Bolte,
530 N.W.2d 191, 198 (Minn. 1995).
The admissibility of Spreigl, or prior act or crime, evidence is governed by
Minnesota Rule of Evidence 404(b). Spreigl evidence is not admissible to show a person’s
character and that a person acted in conformity therewith. Minn. R. Evid. 404(b)(1). Such
evidence may be admissible for some other permissible purpose, such as “motive,

22
opportunity, intent, preparati on, plan, knowledge, identity, or absence of mistake or
accident.” Id. For Spreigl evidence to be admissible:
(1) the State must provide notice of its intent to use the evidence; (2) the State
must clearly indicate what the evidence is being o ffered to prove; (3) there
must be clear and convincing evidence that the defendant participated in the
other act; (4) the Spreigl evidence must be relevant and material; and (5) the
probative value of the ev idence must not be out weighed by the potential
prejudice.

State v. Clark, 755 N.W.2d 241, 260 (Minn. 2008).
We need not determine whether the district court abused its discretion in admitting
the Spreigl evidence because there is no reasonabl e possibility that the evidence of
Buchan’s prior assault ag ainst I.Y. significantly affected the verdict. See Griffin ,
887 N.W.2d at 262. The district court instructed the jury on the proper use of Spreigl
evidence before the evidence of the assault was introduced. 17 See Clark, 755 N.W.2d at
261 (explaining that any concerns about the potential prejudice of Spreigl evidence was
minimized by the district court’ s instruction about the permi ssible use of the evidence).
The district court repeated this instruction before each witness testified and before closing
arguments. See State v. Rossberg , 851 N.W.2d 609, 616 (Minn. 2014) (noting that the

17 The district court instructed:

Members of the jury, the State is ab out to introduce evidence of an
occurrence on April 11th, 2020. This evidence is being offered for the
limited purpose of assisting you in determining whether the defendant
committed the acts that are charged on October 25th, 2020. The defendant
is not being tried for and may not be convicted of any offense other than the
charged offenses. You are not to c onvict the defendant on the basis of
occurrences on April 11th, 2020. To do so might result in an unjust double
punishment.
23
district court minimized the risk of prejudice when it repeatedly instructed the jury to not
find the defendant guilty based on past conduct) . The jury instructions also included an
instruction on the proper use of the April 2020 assault evidence, and Buchan’s trial counsel
withdrew a request to amend this instruction.
In addition, the State presented ample ev idence of Buchan’s motive to kill Boyce
apart from the Spreigl evidence. The Facebook messages between the two show that
Buchan suspected Boyce of killing J.S. Evidence was presented that Buchan was close to
J.S. Buchan concedes that intent was not at issue at his trial because the surveillance video
of the killing clearly showed intent. Ample ev idence of Buchan’s iden tity also existed.
Boyce’s dying declaration identified Buchan as his shooter. Evidence was presented that
Buchan picked Boyce up minutes before his murder. Cell tower data corroborated this fact
and placed Buchan in the area at the time of the shooting. There is not a reasonable
possibility that the Spreigl evidence, even if erroneously admitted, significantly affected
the verdict. See State v. Smith, 940 N.W.2d 497, 505 (Minn. 2020) (“Strong evidence of
guilt undermines the persuasive value of wrongly admitted evidence.”).
CONCLUSION
For the foregoing reasons, we affirm the judgment of conviction.
Affirmed.