State of Minnesota v. Gary John Bogatz, Jr.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1484

State of Minnesota,
Respondent,

vs.

Gary John Bogatz, Jr.,
Appellant.

Filed November 13, 2023
Reversed and remanded
Smith, John, Judge *

Becker County District Court
File No. 03-CR-20-1372

Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Brian W. McDonald, Becker County Attorney, Detroit Lakes, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Paul J. Maravigli, Special Assistant Public Defender, Minneapolis, Minnesota (for
appellant)

Considered and decided by Larkin, Presiding Judge; Wheelock, Judge; and Smith,

John, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to

Minn. Const. art. VI, § 10.
 NONPRECEDENTIAL OPINION

SMITH, JOHN, Judge

We reverse the conviction and remand to the district court for a new trial because

the district court erred by denying appellant Gary John Bogatz, Jr.’s motion to suppress

statements he made during a custodial interrogation when law enforcement officers did not

appropriately limit questioning following Bogatz’s ambiguous invocation of his right to

counsel.

FACTS

Respondent State of Minnesota charged Bogatz with first-degree arson based on

allegations that he started a fire on September 22, 2018, in Detroit Lakes. After his arrest,

two law enforcement officers interrogated Bogatz at the Becker County Jail. One of the

officers read Bogatz his Miranda rights, including the right to have an attorney present

during questioning. Immediately after the Miranda rights were read the following exchange

took place:

BOGATZ: Yeah. I really think it would be smart for me to have
a lawyer.

OFFICER: Okay.

BOGATZ: I’m kind of—

OFFICER: So let me just finish this part first, okay?

BOGATZ: Yeah.

OFFICER: So I read you your rights. You understood those
rights?

2
BOGATZ: Yeah.

OFFICER: Okay. And do you wish to talk to us now about why
we’re here and any other information that we may be able to
share with you?

BOGATZ: Yeah. Yeah, I mean, I’d like to hear what you guys
have to say.

OFFICER: Okay. So, you’re waiving your rights at this point
to talk to us so that you can hear what we have to say? I just
want to make it clear.

BOGATZ: Okay.

OFFICER: Okay?

BOGATZ: Yeah.

OFFICER: Is that a yes?

BOGATZ: Yes.

OFFICER: Because I’ll be honest with you, I’m willing to
share more information with you—

BOGATZ: Okay

OFFICER: —than we did and answer any other questions you
have and hopefully get some more information from you. But
I just want to make it clear that, before we can do that, you have
to understand your rights and agree to speak with us?

BOGATZ: Yes.

OFFICER: That’s a yes?

BOGATZ: Yes.

3
 Following this exchange, the officers questioned Bogatz about the fire. Bogatz first

claimed he started the fire by accident when he lit a napkin with a grill lighter he was using

as a source of light. In response to further questioning, Bogatz stated that the owner of the

building and the owner’s son told Bogatz to start the fire. Bogatz then described how he

broke into the building to make it look like the building had been burglarized and stated

that his roommate started the fire.

Bogatz moved to suppress the statements he made to the police on the grounds that

he had invoked his right to counsel at the beginning of the custodial interrogation. The

district court denied Bogatz’s motion, concluding that his initial response to the Miranda

warning was “equivocal and ambiguous as to whether he was invoking his right to an

attorney,” and that the officers appropriately directed subsequent questioning to

establishing Bogatz’s “true desires regarding his rights,” in accordance with Minnesota

law. Accordingly, the district court denied Bogatz’s motion to suppress.

At trial, the state presented the jury with the entire hour-and-a-half video of Bogatz’s

interrogation, as well as a transcript of the interrogation. The state also made repeated

reference to Bogatz’s statements throughout both opening and closing arguments. At the

conclusion of trial, the jury found Bogatz guilty of first-degree arson. The district court

sentenced Bogatz to an executed 68-month prison sentence and ordered him to pay

restitution. Bogatz now requests that this court reverse the conviction and remand for a

new trial.

4
 DECISION

Bogatz argues that the district court erred by denying his motion to suppress and

that, because the error was not harmless, he is entitled to a new trial.

I. The district court erred in denying Bogatz’s motion to suppress.

Under the United States and Minnesota Constitutions, a defendant cannot be

compelled to be a witness against themself in a criminal case. U.S. Const. amend. V; Minn.

Const. art. I, § 7. The United States Supreme Court has held that the right to have counsel

present during a custodial interrogation is an indispensable prophylactic measure to protect

an accused’s Fifth Amendment privilege against self-incrimination. State v. Risk, 598

N.W.2d 642, 647 (Minn. 1999) (citing Miranda v. Arizona, 384 U.S. 436, 469 (1966)).

To successfully invoke their right to counsel, the accused must articulate their desire

to have counsel present with sufficient clarity for a reasonable police officer in the

circumstances to understand the statement as a request for an attorney. Id. at 648 (citing

Davis v. United States, 512 U.S. 452, 459 (1994)). Once an accused has invoked their right

to counsel, all police interrogation must cease, but only if the invocation of counsel was

unambiguous. State v. Miller, 573 N.W.2d 661, 671 (Minn. 1998) (first citing Edwards v.

Arizona, 451 U.S. 477, 484-85 (1981); and then citing Davis, 512 U.S. at 461-62). Where

a suspect’s request for counsel is equivocal or ambiguous, but could be construed as a

request for counsel, Minnesota law requires that all questioning cease except for “narrow

questions designed to ‘clarify’ the accused’s true desires respecting counsel.” State v.

Robinson, 427 N.W.2d 217, 223 (Minn. 1988).

5
 Alleged violations of a suspect’s right to counsel present mixed questions of fact

and law. State v. Chavarria-Cruz, 784 N.W.2d 355, 363 (Minn. 2010). We review factual

determinations for clear error. State v. Ortega, 798 N.W.2d 59, 70 (Minn. 2011). We

review application of the reasonable officer standard and application of the “stop and

clarify” rule de novo. Id.

We agree with the district court that Bogatz’s invocation of his right to counsel was

equivocal or ambiguous. However, since Bogatz’s invocation of his right to counsel could

be construed as a request for counsel, all further questioning should have ceased “except

[for] narrow questions designed to ‘clarify’ the accused’s true desires respecting counsel.”

Robinson, 427 N.W.2d at 223. We hold that the officers’ follow-up questions did not satisfy

this requirement.

While the officers’ follow-up questions did ask Bogatz about his rights generally,

the law requires more. Bogatz’s ambiguous invocation of his right to counsel could be

construed as a request for counsel, so the officers were obligated to confine further

questioning to the narrow issue of clarifying Bogatz’s ambiguous request. The officers did

not appropriately limit their follow-up questions, but rather asked if Bogatz wanted to

speak with them and hear the information that they could share with him. Bogatz stated

that he would “like to hear what you guys have to say,” after which the officers did not

address Bogatz’s ambiguously expressed desire for counsel. Instead, they asked him if he

was “waiving [his] rights” so he could hear what they had to say. The focus of the

discussion following Bogatz’s ambiguous invocation of counsel was not clarifying

Bogatz’s request. The focus of the conversation was whether Bogatz wanted to hear what

6
the officers had to say. Consequently, the officers’ follow-up questioning was improper,

and Bogatz’s subsequent statements should have been suppressed.

In Ortega, upon which the state relies, the suspect asked if he was supposed to have

a lawyer present. 798 N.W.2d at 64. The officer responded: “[T]hat’s what I’m going to

tell ya, I’m going to give you your rights, okay?” Id. After responding to a prior question

from the suspect, the officer explained that he could not speak with the suspect if the

suspect wanted to speak with an attorney. Id. After the officer read a Miranda warning, the

suspect confirmed he understood his rights. Id. The officer then asked if the suspect wished

to tell officers his “side of the story,” to which the suspect replied that he did. Id. The

Minnesota Supreme Court held that the suspect’s constitutional right to counsel had not

been violated because providing the suspect “with an accurate Miranda warning is

sufficient as a matter of law to satisfy the ‘stop and clarify’ rule.” Id. at 72.

Ortega is unlike the present case because of the difference in timing of the equivocal

request for counsel relative to the Miranda warning. Critically, in Ortega, the suspect’s

ambiguous request occurred before the officer informed him of his rights. See id. at 64.

After his ambiguous request, the suspect heard his rights, confirmed that he understood his

rights, and decided to speak with the officers, thereby dispelling the ambiguity over his

desire to have counsel present. See id.

Here, however, the Miranda warning preceded Bogatz’s equivocal invocation of

counsel. The Miranda warning could not have served to clarify Bogatz’s ambiguous

request for counsel because Bogatz had not yet made his request when the officers gave

7
the warning. Since Bogatz’s request followed the Miranda warning, rather than preceded

it, Ortega does not control in this case.

Here, the officer never asked Bogatz whether he was willing to waive his right to

remain silent. Instead, after reading the advisory, the officer asked, “And do you wish to

talk to us now about why we’re here and any other information that we may be able to

share with you?” Whether Bogatz wished to talk about why officers were present and learn

“other information” from the officers is not relevant. This was a tricky way of getting

Bogatz to say yes rather than clarifying whether he was giving up his right to remain silent

and waiving his right to counsel.

In conclusion, because we agree with the district court that Bogatz’s invocation of

his right to counsel was ambiguous, we apply the “stop and clarify” rule to the questioning

that followed. We do not agree that the officer’s follow-up questions were appropriately

limited to the narrow issue of clarifying Bogatz’s desire to have counsel present, therefore

we hold that Bogatz’s constitutional right to counsel was violated, and the district court

erred in denying Bogatz’s motion to suppress. We now turn to whether the error was

harmless.

II. The denial of Bogatz’s motion to suppress was not harmless error.

“When an error implicates a constitutional right, we will award a new trial unless

the error is harmless beyond a reasonable doubt.” State v. Davis, 820 N.W.2d 525, 533

(Minn. 2012). For an error to be harmless beyond a reasonable doubt, the jury’s verdict

must have been “surely unattributable” to the error. State v. McInnis, 962 N.W.2d 874, 886

(Minn. 2021) (quoting Davis, 820 N.W.2d at 533). For this analysis, we consider “the

8
manner in which the evidence was presented, whether it was highly persuasive, whether it

was used in closing argument, and whether it was effectively countered by the defendant,”

as well as whether there was overwhelming evidence of guilt. Id. We conclude that all five

factors militate in favor of a determination that the error in this case was not harmless.

Regarding the manner of presentation, the state made extensive use of Bogatz’s

custodial statements throughout trial, including presenting the jury with the full video of

Bogatz’s custodial interrogation along with the transcript of the interrogation. The state

argues that Bogatz’s statements were presented without “drama or fanfare,” but the fact

that the jury watched the entire hour-and-a-half interrogation, and the prosecutor’s repeated

use of direct quotations from Bogatz’s custodial statements weigh against a finding of

harmless error.

The state also argues that the evidence was not highly persuasive, but this argument

is belied by the state’s own extensive use of the evidence. Bogatz’s custodial statements

were the central focus of the state’s case. The prosecutor began both opening and closing

arguments with direct quotations from Bogatz’s custodial statements, and believed the

interrogation was persuasive enough to warrant showing the entire video of the

interrogation to the jury. This factor, as well as the third (use during closing argument),

weighs against a finding of harmless error.

As to whether Bogatz effectively countered the evidence, we determine that he did

not. The state’s argument to the contrary is unavailing. Bogatz rested without presenting

any witnesses or evidence of his own, and if Bogatz had effectively countered the evidence

of his custodial statements, one would be left wondering how the jury found Bogatz guilty

9
at all, given the lack of other direct evidence of guilt. This factor weighs against a finding

of harmless error.

Regarding the final point, the state itself acknowledges that the evidence of Bogatz’s

guilt “falls short of being overwhelming.” This highly important factor weighs against a

finding of harmless error.

Because we determine that the district court erred in denying Bogatz’s motion to

suppress, and because we cannot say that the error was harmless beyond a reasonable

doubt, we reverse and remand to the district court for a new trial.

Reversed and remanded.

10