author: ANDERSON, G. BARRY, Justice.

text:
    STATE of Minnesota, Respondent, v. Matthew Martin SCANLON, Appellant.
    No. A05-586.
    Supreme Court of Minnesota.
    Aug. 10, 2006.

      John Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, G. BARRY, Justice.

On January 22, 2005, appellant Matthew Scanlon was convicted of the first-degree premeditated murder of bait shop owner Vermont “Ike” Isaacson. On direct appeal, Scanlon alleges that (1) his statements of December 23, 2003, and March 27, 2004, were erroneously admitted in violation of his Fifth Amendment right to counsel; (2) he was erroneously prohibited from admitting evidence of an alternative perpetrator; (3) the state’s discovery violations cumulatively deprived him of a fair trial; and, (4) the evidence was insufficient to sustain his conviction. We affirm.

On September 22, 2003, Ann and Tim Oorlog came home a day early from a trip. They arrived home at about 10:30 p.m. and noticed that the lights in the bait shop next to their home were off, but the bait shop door was open and the neon “open” sign in the bait shop window was on. The next day, when the Oorlogs arose at around 5:00 a.m., they noticed that the bait shop door was still open and the neon sign was still on, which was very unusual. Alarmed, Tim Oorlog went to the bait shop. He discovered the body of the bait shop owner, Isaacson, on the floor of the shop.

Isaacson was killed by a shotgun blast to the chest. The alarm had not been turned on or triggered, and Isaacson’s keys were in his hand, indicating that he had been about to leave for the night when he was shot. Isaacson was known, at least within his circle of friends, to carry thousands of dollars of cash at all times. He favored $100 bills in particular, but his records, compared with the cash found in his security deposit box, indicated that on the day he was murdered he might have been carrying a substantial number of twenties (totaling approximately $2500). Isaacson's wallet was not found, but the money in the register, in his bank bag, and in the motor shop in back of the bait shop was untouched. No directly incriminating or exculpating physical evidence was found at the scene or elsewhere.

Upon investigation, police learned that Scanlon, an acquaintance of Isaacson’s, was the last person seen with Isaacson. A friend of Scanlon reported that Scanlon had remarked that Isaacson would be “an easy guy to knock off’ because he was a loner and carried a lot of money on him.

Police further learned that Scanlon had significant financial difficulties. Scanlon lived with an aunt, to whom he paid $250-$300 rent per month. . Scanlon had not been working for some time, and his personal and business checking accounts had been overdrawn and closed by his bank for nonpayment. He also had borrowed money from various friends and relatives that he had not repaid, and owed more than $19,000 in child support payments. His truck badly needed repairs, but he told acquaintances that he could not afford to get it fixed. Finally, the aunt with whom Scanlon lived had given Scanlon $830 in cash so that he could write a check for her monthly mortgage payment. On September 15, 2003, Scanlon’s aunt received a threat of foreclosure, as Scanlon’s mortgage check had bounced. Scanlon’s aunt was upset and worried about the mortgage payment and confronted Scanlon about it. He told her not to worry about it, that he would go to the bank and “get things straightened out.”

Though Scanlon had at one time worked in the bait shop, he had not worked there for a long time, and it was unusual for him to be there frequently or for long periods of time. But beginning on September 16, 2003, and continuing for the week before Isaacson’s murder, Scanlon suddenly began coming to the shop nearly every day and staying all day. Scanlon told police that he arrived at the bait shop at about 8:30 a.m. on September 22. Both Isaacson and Scanlon remained at the shop until at least 7:30 p.m. Witnesses also testified that the radiator fluid stains by the bait shop were from Scanlon’s vehicle, which had a leaking water pump. These stains appeared to indicate that the car had been backed up and parked briefly by Isaac-son’s car, where it would be difficult to see.

A neighbor testified to seeing Scanlon’s truck still in the bait shop parking lot, now with its hood up, at 8:30 p.m. At that time he also saw Isaacson and Scanlon walking from the front of the bait shop to the back of the bait shop. Another witness testified that at about 8:45 p.m., Scanlon’s truck was by the shop with its hood up. A friend of Isaacson, Kenneth Day, testified that Isaacson called him at approximately 9:00 p.m. to ask Day to open and run the bait shop the next day, as Isaacson had to attend a trade show. Day reported that during the call, Isaacson did not indicate that anyone else was in the shop, and that Isaacson seemed to be getting ready to leave for the night.

At approximately 11:00-11:30 p.m., another witness, Thomas Anderson, saw a truck by the bait shop with an individual inside. Anderson identified Scanlon’s truck as consistent with the vehicle he had seen, but there were inconsistencies with his original statements about the truck and his description of the individual in the truck did not match Scanlon. A pizza deliveryman reported that at 11:30 p.m. there were no vehicles near the bait shop.

The night of Isaacson’s murder, Scanlon returned to his aunt’s house at approximately 10:30 p.m. and gave her about $1000-$1250 in 100s, 20s, and possibly 50s. Scanlon left and drove to a SuperAmerica gas station, where at about 11:00 p.m. he filled up his gas tank and bought sundries, paying in cash.

The next day, Scanlon went to another aunt’s house at about 7:30 in the morning. He left briefly to buy about $100 worth of tools, antifreeze, and a new water pump, for which he paid cash. He returned to his aunt’s house and made an unsuccessful attempt to fix his truck’s water pump. When he found he could not fix the truck, he went to a Sinclair station with his cousin’s flaneé, Eugene Strange. Scanlon told the Sinclair owner that he could spend up to $1000 fixing the truck. Scanlon paid the resulting $802.27 repair bill in twenties. While waiting for the car to be fixed, Scanlon bought lunch for Strange. Scan-lon also promised to give Strange $100 to gamble with, but later revised the offer to $20. The police arrested Scanlon at the Sinclair station at 4:35 p.m. When arrested, Scanlon had either $298 or $398 in his wallet.

Following a search of Scanlon’s residence, the police found a .12 gauge shotgun in a closet near Scanlon’s room. While it was not possible for the police to determine whether that shotgun was the one that had killed Isaacson, it was the correct gauge. Police also recovered some Federal Cartridge Company brand number five shot in Scanlon’s room. A firearms expert testified at trial that the shot cup and wad from the crime scene were Federal brand. The expert also testified that the weight of the pellets retrieved from Isaacson’s body was most consistent with five shot, though the diameter of the somewhat mangled pellets appeared to match that of six shot (the expert noted that given the condition of the pellets, the diameter was also consistent with four and five shot). Evidence at trial indicated that five shot was comparatively rare and not very useful for hunting. But a defense investigator testified that five shot is readily available at local stores.

Scanlon’s statements. Scanlon gave three interviews to the police, and his stories varied widely. Scanlon was first interviewed on September 23, 2003, after he was taken into custody and received a Miranda warning. He spoke with police for a time and then requested counsel. The district court allowed officers to testify regarding the information elicited from Scanlon before he requested counsel, but excluded any testimony from the interview after the request for counsel. Scanlon was released after approximately a month.

Prior to the request for counsel, Scanlon told police he knew that Isaacson carried large amounts of money, that he believed that Isaacson carried even more money than normal when he was about to attend a trade show, and that he knew that Isaac-son was going to attend a trade show on September 23 (the day after the murder). But Scanlon said that he had won the money he was spending on September 22nd and 23rd at Mystic Lake on September 17th. Scanlon said that he had won $4000 playing nickel slots and $5 blackjack. He stated that he had been gambling with $550 he had stashed away in a sleeping bag, which he had accumulated by withdrawing or holding back $100 amounts when depositing his paychecks. Scanlon told the police that he still had $1200 left over stashed inside the sleeping bag, in addition to the $4000 he claimed to have won gambling.

No money was found in Scanlon’s room or truck. Upon investigation the police discovered that Scanlon had not withdrawn or withheld any money when he deposited his checks from work. Additionally, Scan-lon had not told anyone about winning $4000, including two family friends Scanlon had spoken with at Mystic Lake on the day he was gambling. Mystic Lake, which documents winning amounts of $1200 or more, had no record of Scanlon’s winnings. Scanlon claimed that the absence of documentation was because he withdrew the winnings in increments instead of all at once.

Scanlon was next interviewed when he voluntarily came to the police station on December 23, 2003, to retrieve his social security card and driver’s license. At that interview Scanlon was not arrested, was told that he was not under arrest, was told that he was not obligated to speak with the investigator, and in the words of the district court, “at the end of the interview Investigator Talbot and [Scanlon] discussed their back problems, had a laugh, and even exchanged pleasantries.” The district court ruled that because of the two-month break in custody and the fact that Scanlon was not in custody at the time of the December 23 interview, Scanlon’s September 23 invocation of the right to counsel did not bar the admission of his December 23 statements.

At the December 23 interview, Scanlon told police that he had gotten the money that he gave his aunt from a post office money order for $856 that had been returned to him. He stated that he had cashed the money order at his bank on the morning of September 22. But post office databases did not show any postal money orders for that amount issued between July and October 2003, and Scanlon’s bank stated that no money order for the amount or a similar amount had been cashed on any date between September 18th and September 23rd. Additionally, Scanlon was at the bait shop at 8:30 a.m. on September 22nd and stayed there all day, and the bank lobby did not open until 9:00 a.m. Finally, the bank representative stated that the bank would not have cashed a postal money order for Scanlon in any event, as his accounts at the bank were all closed prior to the time period in question.

Scanlon was again interrogated on March 27, 2004, shortly after he was arrested for Isaacson’s murder. Scanlon does not contest that he was read and waived his Miranda rights at this interview. This time, when asked where he got the money to pay his aunt, Scanlon said he got part of it from a money order and part from a sleeping bag where he stashed money. Again, he did not mention winning any money at Mystic Lake.

Scanlon also gave different versions of his route home from the bait shop. Construction workers found Isaacson’s driver’s license near the intersection of highways 494 and 62, on one of the routes Scanlon reported taking home. Upon searching the area where the license was found, police officers further discovered Isaacson’s hunting license, DNR site tag, and other cards with Isaacson’s name on them. Isaacson’s wallet was not recovered.

Stephen Jones’s testimony. At trial, the state called Stephen Jones, who was incarcerated with Scanlon, to testify ágainst Scanlon. Jones testified that Scanlon had confessed the crime to Jones in detail, and recounted those details. There were inaccuracies and inconsistencies in the story Jones said that Scanlon had told him. Jones admitted during cross-examination that he would be receiving consideration for his testimony in the Scanlon matter, as his sentencing judge would be told of Jones’s cooperation. Scanlon also extensively impeached Jones regarding his credibility, his criminal history, his present charge, and his access to information about Scanlon’s crime from other sources.

Discovery violations. The state committed at least three discovery violations during trial, for which the district court eventually sanctioned the state. In all, Scanlon has raised seven discovery issues in this appeal.

Alternative perpetrator evidence. Prior to trial, Scanlon notified the court that he intended to present evidence of an alternative perpetrator, S.A., who lived across the street from the bait shop. Allegedly, a neighbor, Mark Eliseuson, had told a friend, one,of Scanlon’s aunts, and a defense investigator that S.A. had told Eli-seuson that S.A. had killed Isaacson. But at the pretrial hearing on the alternative perpetrator issue, Eliseuson stated that S.A. had not confessed to the murder, but had only said “If I would have done it, I would have gotten away with it.” The friend and the aunt testified that Eliseuson told them that S.A. had confessed to killing Isaacson. The tape of Eliseuson’s statement to the defense investigator was unclear. Eliseuson did testify that S.A. was a drug dealer and carried guns. In addition to impeachment testimony, Scanlon submitted to the eoprt evidence that S.A. was convicted in connection with the kidnapping of his wife, and had been a suspect in a recent gun theft case.

The district court excluded the alternative perpetrator evidence, concluding that the only connection between S.A. and the crime was impeachment- statements consisting of several levels of hearsay. The court concluded,- “[w]here somebody told somebody told somebody that he heard somebody say something, and that’s kind of where we’re at. I don’t think it rises to the level of evidence with an inherent tendency to connect [S.A.] to the actual murder of Ike Isaacson.”

The jury found Scanlon guilty of first-degree premeditated murder. The district court sentenced Scanlon to life imprisonment, and Scanlon now appeals his conviction to this court.

I.

Scanlon notes that he ended his in-custody interrogation on September 23 by demanding counsel. He argues that he did not re-initiate conversation after requesting counsel, and that therefore his statements given on December 23 and March 27 were inadmissible because those statements were obtained in violation of his right to counsel.

In Edwards v. Arizona, the U.S. Supreme Court held that “an accused, * * * having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.” 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). There are three steps to determine whether the Edwards rule, and thus a defendant’s Fifth Amendment right against self-incrimination, was violated: First, the court must determine whether the suspect invoked his right to counsel during a custodial interrogation; if so, then “courts may admit responses to further questioning only on finding that [the accused] (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right invoked.” State v. Munson, 594 N.W.2d 128, 138-39 (Minn.1999) (internal quotation marks omitted).

The Edwards rule is intended to prevent police from badgering an in-custody suspect. Arizona v. Roberson, 486 U.S. 675, 685-86, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). Because of this principle, the Edwards rule applies to any interrogation after a request for counsel, whether about the initial crime or a different crime. Roberson, 486 U.S. at 683-84, 108 S.Ct. 2093. “[T]o a suspect who has indicated his inability to cope with the pressures of custodial interrogation by requesting counsel, any further interrogation without counsel having been provided will surely exacerbate whatever compulsion to speak the suspect may be feeling.” Id. at 686, 108 S.Ct. 2093 (emphasis added).

Edwards does not address whether this rule survives a break in custody. Nor have we previously addressed the question. But in McNeil v. Wisconsin, the Supreme Court intimated that Edwards would not apply where a break in custody occurred: “If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect’s statements are presumed involuntary and therefore inadmissible as substantive evidence at trial ⅜ * 501 U.S. 171, 177, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (emphasis added). Additionally, many state and federal courts have held that a break in custody defeats the Edwards rule. Indeed, one court observed that “Although this is an issue of first impression in this circuit, we note that other courts have unanimously reached this conclusion.” Kyger v. Carlton, 146 F.3d 374, 380-81 (6th Cir.1998) (holding that Edwards does not apply to suspects who are not in continuous custody).

Some courts have added a caveat that the release from custody must not be made in bad faith (i.e., done merely as an attempt to defeat Edwards). See, e.g., State v. Bymes, 258 Ga. 813, 375 S.E.2d 41, 42 (1989) (Edwards protection defeated where there was “no indication appellee’s release from custody was a mere ploy in order to seek another waiver”). Other courts have adopted a “totality of the circumstances” test to determine whether the break in custody was sufficient to defeat the Edwards protection. See, e.g., United States v. Bautista, 145 F.3d 1140, 1150 (10th Cir.1998) (“Whether a break in custody is sufficient to remove a suspect’s request for counsel from the ambit of Edwards must be evaluated under the totality of the circumstances.”).

We conclude that a break in custody limits the applicability of Edwards. Here, there were months between Scan-lon’s invocation of his right to counsel and his subsequent statements — months in which he was not in custody. By any standard, Scanlon was therefore sufficiently “out of custody” for his Edwards invocation to be nullified. Because Scanlon conceded at oral argument that there is no evidence that Scanlon’s release was pre-textual, we need not consider whether the break in custody rule is subject to an exception for pretextual release or other limitation.

At oral argument, Scanlon argued in the alternative that the Minnesota Constitution mandates the suppression of the two statements at issue here. Scanlon cites State v. Risk, where we held that the Minnesota Constitution required police officers, when faced with an ambiguous Edwards request for counsel, to “stop and clarify” whether the defendant was in fact requesting counsel. State v. Risk, 598 N.W.2d at 642, 648-49 (Minn.1999). In Risk, while we acknowledged that the Supreme Court in Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), had held that a request for counsel must be “clear and unambiguous” to qualify as an invocation of Edwards protection under the Federal Constitution, we concluded that the “stop and clarify” approach was required to satisfy the protection against self-incrimination provided by Article 1, Section 7 of the Minnesota Constitution. Risk, 598 N.W.2d at 647-49.

While it is true that in Risk we interpreted the protection against self-incrimination afforded by the Minnesota Constitution as reaching further than that of the Federal Constitution, in Risk we simply re-affirmed a longstanding rule. We had articulated the “stop and clarify” rule several years prior to the Davis decision. State v. Robinson, 427 N.W.2d 217, 223 (Minn.1988). Here, there is no preexisting precedent regarding the effect of a break in custody, and we decline to create one.

II.

Scanlon argues that the district court inappropriately excluded Scanlon’s alternative perpetrator evidence based on the court’s assessment of Eliseuson’s credibility. Scanlon adds that the reverse-Spreigl evidence against S.A. was also admissible because the incidents show that S.A. had access to a .12 gauge shotgun and would steal from a vulnerable person. Scanlon contends that the error was not harmless as it could have affected the verdict.

“Rulings on evidentiary matters rest within the sound discretion of the district court, and we will not reverse a district court’s evidentiary ruling absent a clear abuse of discretion.” State v. Moua, 678 N.W.2d 29, 37 (Minn.2004).

We have held that evidence of an alternative perpetrator can only be admitted if the evidence has an “inherent tendency” to connect the alternative perpetrator with the crime. State v. Jones, 678 N.W.2d 1, 16 (Minn.2004). Additionally, we have noted that a defendant’s right to present witnesses is constitutionally protected, but “with that right comes the obligation to comply with procedural and evidentiary rules.” State v. Blom, 682 N.W.2d 578, 621 (Minn.2004). In State v. Palubicki, 700 N.W.2d 476, 485-86 (Minn.2005), we explained that “evidence having an inherent tendency to connect the alternative perpetrator to the crime” meant evidence which somehow connects the alternative perpetrator to the crime scene. Recently, in State v. Vance, we concluded that the district court did not err in excluding evidence suggesting J.M. as an alternative perpetrator where the only evidence having an inherent tendency to connect J.M. to the crime was inadmissible hearsay. State v. Vance, 714 N.W.2d 428, 437-38 (Minn.2006).

In this case, the defense sought to admit as alternative perpetrator evidence Eliseuson’s testimony that he did not hear S.A. confess to Isaacson’s murder, and then the impeachment testimony of Scan-lon’s aunt and his aunt’s friend that Eliseu-son told them that he did hear S.A. confess. A witness may be impeached using a prior inconsistent statement, and extrinsic evidence of a prior inconsistent statement by a witness is admissible if the witness is afforded a prior opportunity to explain or deny the statement and the opposite party is afforded an opportunity to interrogate the witness thereon, or as otherwise required by the interests of justice. Minn. R. Evid. 613. But the impeachment statements of Scanlon’s aunt and her friend are double hearsay and are therefore presumptively inadmissible. See Minn. R. Evid. 801(c). Scanlon does not present arguments here as to why these hearsay statements should be admitted as substantive evidence. Under Vance and under the circumstances of this case, inadmissible hearsay statements cannot inherently connect an alternative perpetrator to a crime, and the district court did not err in excluding the disputed evidence.

Scanlon also sought to introduce testimony from Eliseuson that S.A. stole guns from a third party and additional evidence that S.A. might have had a .12 gauge shotgun. But evidence of other crimes, wrongs, or bad acts committed by the alleged alternative perpetrator (“revers e-Spreigl ” evidence) is admissible only if the defendant has met the threshold requirement of sufficiently connecting the alternative perpetrator to the commission of the crime with which the defendant is charged. Jones, 678 N.W.2d at 16. Here, there was no evidence produced that inherently connected S.A. to Isaacson’s murder, and absent such evidence the district court did not err in excluding the reverse-Spreigl evidence.

III.

Scanlon argues that the state committed numerous discovery violations and that the state’s misconduct and carelessness resulted in prejudice to the defense and deprived Scanlon of a fair trial. Scanlon further argues that even if there was no prejudice here, this court should still grant a new trial because repeated discovery violations should not be tolerated. The state counters that it only committed three actual discovery violations, none of which were in bad faith or were prejudicial.

Whether a discovery violation occurred is an issue of law, which we review de novo. State v. Bailey, 677 N.W.2d 380, 397 (Minn.2004). We review a trial court’s decision on whether to impose sanctions for discovery violations for an abuse of discretion. State v. Patterson, 587 N.W.2d 45, 50 (Minn.1998). “Generally, without a showing of prejudice to the defendant, the state’s violation of a discovery rule will not result in a new trial.” Palubicki, 700 N.W.2d at 489. The determination of whether a new trial should be granted “due to prosecutorial misconduct” “ ⅛ governed by no fixed rules but rests within the discretion of the trial judge, who is in the best position to appraise its effect.’ ” Id. (quoting State v. Wahlberg, 296 N.W.2d 408, 420 (Minn.1980)).

In determining sanctions or remedies for discovery violations, this court has set forth the following factors to be considered: (1) the reason why the disclosure was not made; (2) the extent of the prejudice to the opposing party; (3) the feasibility of rectifying that prejudice with a continuance; and (4) any other relevant factors.

Woodruff v. State, 608 N.W.2d 881, 886 (Minn.2000). “A trial court’s determination should be reversed on appeal only when the prosecutor’s misconduct, ‘viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that [the] defendant’s right to a fair trial was denied.’ ” Palubicki, 700 N.W.2d at 489 (alterations in the original) (quoting Wahlberg, 296 N.W.2d at 420). Any discovery-related misconduct on the part of the state is “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error.” Id.

The district court concluded that the state committed three discovery violations. The first and most serious violation occurred when Detective Kirby mentioned at trial that he had shown the shot cup, wadding, and some pellets from the crime scene to a Minneapolis Police Department firearms examiner, Dana Klauss, and that Klauss had made a preliminary determination that the pellets were five shot. Scan-lon had not received any notice of this preliminary evaluation or opinion, and it undermined his argument that the pellets were actually six shot. Apparently, Scan-lon had received no notice because the state did not realize that Kirby had not noted the preliminary evaluation in his reports. Scanlon made a motion for mistrial, but later withdrew the motion. The court ruled that this was a discovery violation and issued a curative instruction, but stated that the prejudice was not so extreme as to warrant a mistrial.

The state’s failure to disclose Klauss’s examination was a violation of Minn. R.Crim. P. 9.01, subd. 1(4). But the district court’s conclusion that the violation was not sufficiently prejudicial to cause a mistrial was not an abuse of discretion; the mention was brief, and took place before the expert testimony on the nature of the shot. The jury was not yet aware of the significance, if any, of the size of the shot. And realistically, it is unlikely that the jury concluded much from the alleged comparative rarity of five shot, because there was defense testimony indicating that five shot can be inexpensively and easily purchased. The significant evidence against Scanlon was that he was with the victim just before the murder, that he had no money before the murder, and that after the murder he had thousands of dollars in cash.

The two additional violations were even less prejudicial. First, in the course of Jones’s testimony, Scanlon discovered that Jones had had a brief preliminary interview with a detective, which was not reduced to a report or disclosed to the defense. The district court ruled that the substance and existence of the meeting with the detective should have been disclosed, but that there was no prejudice to Scanlon from the discovery violation. Second, at one point during cross-examination, Officer Talbot stated that Jones had said that Scanlon told him that Scanlon’s father had helped get rid of the murder evidence. Talbot further said that he had asked Scanlon’s father about this and the father had denied it; this interview with the father had not been previously disclosed to Scanlon. The district court ruled that this was another discovery violation on the part of the prosecution and ordered the prosecutors to show cause, at the end of trial, as to why they should not be held in contempt for their discovery violations. But the court also refused to dismiss the case because it ruled that there was no prejudice to the defense from the violation. We agree with the court that these were violations of Minn. R.Crim. P. 9.01, subd. 1(2), but we further agree with the court that no prejudice resulted from the violations.

Scanlon raises four other alleged discovery violations. These alleged violations were not ruled on by the district court and were without any prejudicial effect. First, prosecutor Richardson admitted to meeting with Jones the day before Jones testified, but did not inform Scanlon of the substance of this meeting as required by rule 9.01, subd. 1(2). Second, the medical examiner initially refused to release her files to the defense despite receiving a subpoena requiring the release. Then, when Scanlon finally received the file, Scanlon discovered a note inside the medical examiner’s file stating that a sheriffs deputy had mentioned that there had been a series of “smash and grabs” along Highway 7 around the night of Isaacson’s murder. Third, during the testimony of fingerprint analyst Deputy Nelson, Scan-Ion realized that Nelson was referring to notes that had not been provided to Scan-lon. As to the latter allegation, Scanlon volunteered that there was no prejudice to the defense, presumably because there were no useable fingerprints found at the crime scene or elsewhere. Fourth, Scan-lon claims that the state had reached a deal with Jones on the number of months the state would request that Jones serve as a result of his conviction in the unrelated matter, but had denied to Scanlon that any such agreement was reached. We need not examine these alleged errors in depth, as even were we to find them all to be error, none were prejudicial. We note, however, that the state did not appear to have control over some of the files requested, and that the state correctly told Scan-lon that there was no deal as to the length of Jones’s sentence.

Scanlon argued, and we acknowledge, that there is a line of cases that emphasize our power to overturn a verdict based on discovery violations even if prejudice is not explicitly shown. State v. Kaiser, 486 N.W.2d 384, 387 (Minn.1992) (citing State v. Schwantes, 314 N.W.2d 243, 245 (Minn.1982) (“[Ajlthough the evidence of defendant’s guilt was strong, we conclude that a new trial is required in the interests of justice and to insure that the reciprocal discovery rules adopted by this court are observed by both the prosecution and the defense.”)). But in these cases, the evidence was concealed in bad faith or was very important to the defense. See Kaiser, 486 N.W.2d at 386-87 (prosecutor deliberately concealed exculpatory information, telling witness to “keep her mouth shut”); Schwantes, 314 N.W.2d at 245 (defendant allowed wife to testify because he did not know of her previous interview statements).

The violations here appear to be the result of oversight or mistake, not deliberate attempts to hide facts or surprise the defense. The state was not scrupulous, and was properly sanctioned, but none of the violations were prejudicial, even cumulatively, and Scanlon was not deprived of a fair trial. There is no evidence of bad faith here, and the information would not have prompted a change in trial strategy, nor was it exculpatory. This case does not qualify for reversal under the Kaiser line of cases.

IV.

Scanlon argues that the evidence against him is insufficient to sustain his conviction. Scanlon points out that but for the questionable testimony of Jones, the evidence against Scanlon is entirely circumstantial, that there are gaps in the evidence, and that “[ajlthough [the evidence against Scanlon] is certainly consistent with a hypothesis of guilt, it is also equally consistent with alternative hypotheses.”

When analyzing a claim of insufficient evidence, we undertake a “painstaking review of the record to determine whether the evidence and reasonable inferences drawn therefrom, viewed in the light most favorable to the verdict, were sufficient to allow the jury to reach its verdict.” State v. Pendleton, 706 N.W.2d 500, 511 (Minn.2005).

In State v. Webb, we held that a ease made up of circumstantial evidence was insufficient to support a guilty verdict, despite the court’s statement that circumstantial evidence “is entitled to as much weight as other kinds of evidence.” 440 N.W.2d 426, 430-31 (Minn.1989). We stated that a conviction based on circumstantial evidence will only be upheld if, when viewing the evidence in a light most favorable to the conviction, “ ‘reasonable inferences from [the circumstantial] evidence are consistent only with the defendant’s guilt and inconsistent with any rational hypothesis except that of his guilt.’ ” Id. at 430 (quoting State v. Anderson, 379 N.W.2d 70, 75 (Minn.1985)). We acknowledged that the jury normally is in the best position to evaluate circumstantial evidence, and that a jury verdict is entitled to due deference, but still concluded that the evidence was insufficient to convict the appellant:

The circumstances in this case which are consistent with the hypotheses of guilt are the facts that the body of the victim was found in the vicinity of the appellant’s apartment; he was seen speaking to her earlier in the day; and his bedspread was found near the victim. Additionally, an unidentified man was seen dragging a heavy object along the sidewalk near the appellant’s apartment. After the murder, appellant shaved his beard and gave away some of his clothing, and later made an apparently joking reference to a friend that he “did it.”
These circumstances may cast a suspicion of guilt on the appellant, but they in no way exclude other rational inferences which can also be drawn from these circumstances. Other circumstances in this case undercut the state’s hypothesis of the appellant’s guilt, and support the hypothesis that appellant did not commit the crime. * * * No physical evidence was discovered linking the victim with the appellant or his apartment despite a painstaking investigation for such evidence. ⅜ * * No blood, body fluids, hair or fibers were found in the apartment to indicate that the victim had ever been there, much less was murdered there and was then redressed by appellant.

Webb, 440 N.W.2d at 430-31 (footnote omitted). The court also specifically noted that the state had failed to establish any credible motive for the crime. Id. at 431.

Similarly, in State v. Jones, we concluded that the fact that Jones owned the gun his brother used to shoot the victim, that Jones was provoked by the victim the day before the shooting, and that Jones might have owned the bicycle his brother was using, were insufficient facts from which to conclude that Jones conspired with his brother. 516 N.W.2d 545, 547-49 (Minn. 1994). “Other rational conclusions, such as the conclusion that [Jones’s brother] determined on his own to avenge the wrongs to [Jones], are consistent with the evidence presented.” Id. at 549.

In this case, there is no direct evidence connecting Scanlon to the crime, unless the testimony of Jones is credited. It is possible that someone else happened to come by just as Scanlon left, and shot Isaacson, and that Scanlon coincidentally managed to secure thousands of dollars that day. It is possible that Scanlon got the money through another illegal source and lied about the source of the money to the police for that reason, or that he did win it at Mystic Lake, simply decided not to tell anyone or spend any of it until September 23, and later made up a story about postal orders for unknown reasons. But all of these scenarios stretch the concept of “rational hypothesis” to absurd limits. We see no reason here to disturb the verdict of the jury.

Affirmed.

      .An employee of the motor shop in the back of the bait shop testified that, prior to September 16, 2003, Scanlon used to stop by the bait shop only about once a month and stayed for only two to three hours.

      . Scanlon was at the shop all day on September 16th, 18th, 19th, and 22nd.

      . A different witness reported not noticing Scanlon’s truck at the bait shop at 8:30 p.m.

      . Conflicting testimony was given regarding the amount of money found on Scanlon.

      . The shotgun belonged to Scanlon's cousin.

      . The diameter approximation was . 11 inches, which is the average diameter for 6 shot. The average diameter of 5 shot is .12 inches. The weight of five shot should be 2.58 grains, while six shot would weigh 1.95 grains on average. The average weight of the pellets from the shooting was 2.4 grains, much closer to the weight of five shot.

      .At that time Scanlon was not under arrest for the murder, but for his failure to pay child support.

      . The defense argued that Scanlon had not told anyone about the $4000 because he would then have had to pay people back the money he owed them.

      . For example, Jones stated that Scanlon was concerned about "rare .20 gauge shells” found in his truck. But .20 gauge shot was not used in the Isaacson murder.

      . Eliseuson’s taped statement was: "[S.A.] was drunk at a party or something, and he kind of bragged, umm, I was already kind of drunk, umm. * * * But, ahh, he, I remember him saying something about, umm, I got away with it, or I, or I, I can't, I can't remember exactly, but he, I know it was something to do with [Isaacson] and, you know, shooting him.”

      . See, e.g., United States v. Harris, 221 F.3d 1048, 1052-53 (8th Cir.2000) (three-hour break in custody defeated Edwards protection, as defendant "had ample opportunity to consult his family, friends, or a lawyer"); United States v. Barlow, 41 F.3d 935, 945 (5th Cir.1994) (following other circuits in holding that if, "after invoking her Fifth Amendment right to counsel, a suspect is released from custody, then the concerns that prompted Edwards ’ prophylactic rule are sufficiently minimized that any Edwards violation allegedly founded on those prior requests simply ‘dissolves.’ ”); McFadden v. Garraghty, 820 F.2d 654, 661 (4th Cir.1987) (two breaks in custody severed any causal link between the initial unlawful interrogation and appellant's voluntary confessions); United States v. Skinner, 667 F.2d 1306, 1309 (9th Cir.1982) (holding that Edwards protection does not apply where the suspect was not in continuous custody); State v. Norris, 244 Kan. 326, 768 P.2d 296, 302 (1989) (defendant’s Fifth Amendment right to counsel terminates when he is released from custody); State v. Alley, 841 A.2d 803, 809 (Me.2004) (after a break in custody — here, six hours in length' — law enforcement officials may reinitiate interrogation in the absence of counsel as long as the defendant has had a reasonable opportunity to contact counsel).

      . “Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R. Evid. 801(c). Minnesota Rule of Evidence 801(d) states that a statement is not hearsay if: (1) “The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, [and (2) ] the statement ⅛ * * * inconsistent with the declar-ant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.” But Eliseuson's statements were not made under these qualifying circumstances.

      . Scanlon argued prior to trial that the statements should be admitted under Minn. R. Evid. 803(24), the "catch-all” hearsay excep-lion, which allows introduction of a hearsay statement
      not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
      It is very unlikely that Eliseuson’s hearsay would be considered particularly trustworthy, as he himself admitted that he and S.A. were both quite drunk at the time of the "confession.” See supra note 10.

      . The deputy described "smash and grabs” as "[w]here somebody smashes the front window or door to a business to gain entry and just retrieves items from the business and leaves right away, they don’t spend a time-frame in there searching the business, taking other items.”

      . The penalty imposed on the prosecutors for having mishandled the discovery process was that they had to teach a course on discovery.


source: Caselaw Access Project

author: ANDERSON, PAUL H., Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. John Russell HEDEN, Appellant.
    No. A05-1386.
    Supreme Court of Minnesota.
    Aug. 10, 2006.

      Office of the State Public Defender, Leslie J. Rosenberg, Assistant State Public Defendér, Minneapolis, MN, for Appellant.
    Mike Hatch, Minnesota State Attorney General, John B. Galus, Assistant Attorney General, St. Paul, MN, David M. Olin, Pennington County Attorney, Thief River Falls, MN, for Respondent.
   OPINION

ANDERSON, PAUL H., Justice.

On April 4, 2005, a Pennington County jury found John Russell Heden guilty of first-degree murder — criminal sexual conduct, in violation of Minn.Stat. § 609.185(a)(2) (2004); first-degree murder — child abuse, in violation of Minn.Stat. § 609.185(a)(5) (2004); and second-degree felony murder, in violation of Minn.Stat. § 609.19, subd. 2(1) (2004), for the March 1, 2004 “shaken infant” death of his three-month-old daughter. The district court then convicted Heden of first-degree murder — criminal sexual conduct and sentenced him to life imprisonment without the possibility of release. Heden raises seven issues on this direct appeal and asks us to reverse and dismiss the charge of first-degree murder — criminal sexual conduct and remand for a new trial on first-degree murder — child abuse and second-degree felony murder. We affirm.

At 6:40 a.m. on March 1, 2004, appellant John Russell Heden dialed 911 to report that his three-month-old daughter, Rose, was not breathing. Emergency responders arrived within minutes, but they were unable to revive Rose, who was not breathing, had no pulse, and had blood coming out of her nose. When a paramedic informed Heden that further resuscitation efforts would be futile, he responded by shrugging his shoulders and making a statement to the effect that, unfortunately, bad things happen. Heden’s wife, Shawna, who had been at work, was picked up by first responders and arrived home after the resuscitation efforts were terminated. After securing the scene, a deputy asked Heden and Shawna to go to the county law enforcement center to be interviewed. A first responder gave Heden and Shawna a ride because the Hedens’ only working vehicle was still at Shawna’s place of employment.

Heden and Shawna waited in the lobby of the law enforcement center for a Bureau of Criminal Apprehension (BCA) agent to interview them. When BCA Agent Philip Hodapp arrived, he introduced himself and explained that he was going to the county attorney’s office, but would be back to speak with them. At that time, a deputy was at the county attorney’s office preparing a search warrant for the Hedens’ home.

Shawna, who was interviewed first, informed Hodapp that she had gotten up around 5:00 a.m. and left for work at approximately 5:15 a.m. Shawna stated that she had last checked on Rose at 1:00 a.m., at which point Rose had been fine. Ho-dapp interviewed Heden next. This interview, like the interview of Shawna, was recorded. Heden was neither under arrest nor physically restrained during the interview. Heden’s stepsister, who was in the lobby of the law enforcement center during the interviews, testified that Heden and Shawna were “free to go in and out” of the building.

During this first interview, Heden initially told Hodapp that he had woken up around 6:00 a.m. to find Rose unresponsive and then called 911. Later in the one-hour interview, Heden said that he had gotten up a little bit earlier to feed Rose, and then found her unresponsive when he checked on her at about 6:00 a.m. Heden denied striking or shaking Rose that morning, but acknowledged that he had shaken her lightly on or about February 14. He also acknowledged having performed “rescue breathing” on Rose about one month earlier. Both Heden and Shawna gave permission to search their home and agreed to provide Hodapp with the clothing they were wearing that morning. Hodapp then suggested that Heden and Shawna meet him at their home so that they could give him their clothing.

Heden and Shawna left the law enforcement center in Heden’s stepsister’s car. Hodapp arrived at the Hedens’ home about 20 to 30 minutes before the Hedens and, while there, he observed blood spatters around Rose’s crib. Based on discrepancies between the evidence at the scene and Heden’s earlier statement, Ho-dapp decided to interview Heden again. After Heden and Shawna arrived, they were admitted to the home one at a time to change their clothes. When it was He-den’s turn, Hodapp followed him into a bedroom. When Hodapp and Heden were alone in the bedroom, Hodapp began to ask Heden some questions. Heden was not physically restrained. Hodapp also recorded this conversation, but this time the audio recorder was hidden in a pocket of Hodapp’s notebook and Heden was probably unaware that he was being recorded.

Hodapp asked Heden about some discrepancies between his earlier statement and other evidence, and after a number of other questions, asked Heden if he had done something to Rose to stop her from crying. Heden responded, “Yeah, I guess I ain’t sure if I did shake her a little bit.” Hodapp then encouraged Heden to tell the truth. Heden stated that he was “a little antsy” because he did not want to go to prison. Hodapp informed Heden that he could make him no promises in that respect. Heden then admitted to shaking Rose back and forth “too hard.” Hodapp asked Heden to demonstrate how he had shaken her, and Heden complied by showing Hodapp what he had done. Hodapp asked Heden how many times he had shaken Rose back and forth, and Heden responded that he had shaken her approximately five times. Heden also acknowledged that Rose’s head had snapped back and forth when he shook her.

About 15 minutes into the interview, Hodapp told Heden that he was turning on his tape recorder, pretended to activate the recorder, and then asked Heden to repeat what he had told him. At this point, Heden left the bedroom to use the bathroom. When he returned to the bedroom, Heden repeated his admission, after which Hodapp asked questions highlighting Heden’s cooperation with the investigation and asked him, “[yjou’re not under arrest, right?” Heden responded, “[y]eah.”

Hodapp then informed Heden that he was now the focus of the investigation and told Heden that he needed to advise him of his rights. Heden asked if he was under arrest, and Hodapp responded that he needed to call the county attorney to “see what he wants to do.” Hodapp then advised Heden of his Miranda rights and asked if he wanted to give a full statement. Heden again acknowledged shaking Rose, and said that an injury to Rose’s chin was from putting her on the floor. The interview ended after about 27 minutes, at which point Hodapp asked Heden to remain in the bedroom while Hodapp spoke with deputies and the county attorney. Hodapp left the bedroom and conferred with the deputies who were at the home. Heden was then placed under arrest.

The next day, Dr. Michael McGee performed an autopsy on Rose. McGee concluded that the manner of death was homicide and the cause of death was “cra-niocerebral injuries due to or associated with shaken infant due to or associated with an assault.” McGee found a fresh-appearing abrasion on Rose’s chin, a fingernail scratch on Rose’s cheek, and fresh-appearing “fingerprint” bruising on Rose’s upper chest that he did not believe were CPR injuries. McGee also found a laceration in Rose’s vaginal canal. He later testified that the cause of this laceration was penetration by an oversized object with enough force to tear the tissue, which would have caused Rose pain. McGee stated that this injury was both old and new: the original laceration would have occurred a minimum of two to four days before Rose’s death, but the injury was re-torn on the day she died and began to bleed again.

Dr. McGee stated that Rose died due to a fresh-appearing subdural hemorrhage. McGee also found bilateral “perioptic hemorrhage” — bleeding “around the outer aspect of the eye or around the optic nerve” — which is associated with shaken infant syndrome. McGee testified that the fatal head injuries were consistent with having been inflicted between 6:00 a.m. and 6:40 a.m. on March 1, but he could not rule out infliction of the injuries between 5:00 a.m. and 6:40 a.m. McGee also found evidence of a previous, nonfatal shaking incident that occurred approximately 7 to 14 days before Rose’s death and a 2- to 4-day-old tear in Rose’s mouth caused by direct pressure.

After receiving preliminary autopsy results indicating that Rose had been sexually assaulted, BCA agents interviewed Heden a third time. After receiving a Miranda advisory, Heden said that Rose’s crying had woken him up on the morning of March 1 and that he tried giving her a bottle and then a pacifier, neither of which calmed her. He then admitted that he had inserted his finger into her vaginal canal up to the second knuckle approximately three times, and that he noticed blood on his finger, which he wiped on his sweatpants. When nothing stopped Rose from crying, Heden said that he lost control and shook her. He then noticed Rose was not breathing and began to administer CPR. Following this third interview, the county attorney charged Heden with second-degree felony murder and first-degree criminal sexual conduct, and a grand jury subsequently indicted Heden for first-degree murder — criminal sexual conduct, first-degree murder — child abuse, and second — degree felony murder.

In a letter Heden wrote to Shawna from jail five days after Rose died, Heden said: “Something mentally had to happen to me that day, hon. I never imagined I’d do such a thing like that, especially when I don’t like killing or horror movies.” Shawna also testified at trial that Heden told her that he had “snapped” and had “wound up shaking [Rose] and doing the other charge,” but that he said he only “stuck his fingers in” Rose once or twice on the day she died.

Over the course of their investigation, the police learned that Rose had been generally healthy and injury-free until the last few weeks of her life — when Shawna went to work and Heden began to care for Rose alone. On December 8, 16, and 19, on routine visits, Rose was found to be in good health by medical professionals. During a December 29 appointment, a nurse observed a bruise around Rose’s left eye. When asked about the bruise, Shawna explained that she had been in the hospital for gallbladder surgery on December 26-27, and when she came home He-den had told her that the bruise resulted from Rose rolling over on the bed and hitting the wall. The nurse was skeptical that a four-week-old baby could roll over and that rolling into a wall would cause such a bruise. As a result of the nurse’s observations, a child protection social worker visited the Hedens’ home on January 7, by which date the bruise around Rose’s eye was no longer visible. The social worker noticed nothing out of the ordinary about Rose during that visit and Shawna and Heden reiterated Heden’s earlier explanation for the cause of Rose’s bruise. On January 12 and February 2, 2004, Rose was evaluated by her pediatrician, who concluded that she was in good health. The pediatrician specifically noted that Rose had no injuries to her genitalia on February 2.

On or about February 13, 15, and 19, Rose was cared for by family friends, who found her to be injury-free, happy, and interactive. A family friend testified that on February 27, Rose looked happy, interacted with her environment, ate appropriately, and the friend noticed no injuries to Rose’s genitalia when she changed her diaper. The friend did, however, notice a bruise the size of an egg on the top right of Rose’s forehead. On February 29, the day before Rose’s death, another friend of Heden’s and the friend’s stepdaughter visited the Hedens, and they reported that Rose appeared to be injury-free and behaving normally.

Heden’s trial began on March 25, 2005, and lasted seven days. The state’s theory of the case was that sometime after Shawna went to work at approximately 5:15 a.m., Heden digitally penetrated Rose, reopening the previous laceration, and then shook her violently five to six times, causing her death. The state called numerous witnesses. The witnesses included the first responders, law enforcement officials, medical professionals who had cared for Rose during her life, the medical examiner, an additional forensic pathologist, a child protection social worker, and several family members and friends. Heden did not testify and presented only one witness, a pediatric forensic pathology consultant, who testified that autopsy results indicated that Rose had no fresh head or genital injuries on the day that she died, and that her death was caused by complications from a previous head injury. The jury found Heden guilty of first-degree murder — criminal sexual conduct, in violation of Minn.Stat. § 609.185(a)(2) (2004); first-degree murder — child abuse, in violation of MinmStat. § 609.185(a)(5) (2004); and second-degree felony murder in violation of Minn.Stat. § 609.19, subd. 2(1) (2004). The district court convicted Heden of first-degree murder-criminal sexual conduct and sentenced him to life imprisonment without possibility of release. Heden subsequently filed this direct appeal, raising the following seven issues:

(1) the court erred in denying Heden’s motion to suppress his statement to the police;
(2) the evidence was insufficient to support a finding that Heden’s digital penetration of the victim was done “with force or violence”;
(3) the evidence was insufficient to support a finding that Heden caused the victim’s death while committing first-degree criminal sexual conduct;
(4) the imposition of a life sentence without the possibility of release for conviction of first-degree murder — criminal sexual conduct violates the Eighth Amendment, equal protection and due process;
(5) the court erred when it instructed the jury that Minn.Stat. § 609.185(a)(5) (2004) requires the state to prove a “past pattern of child abuse” beyond a reasonable doubt but does not require proof beyond a reasonable doubt of each act constituting the pattern;
(6) the evidence was insufficient to support a finding of a “past pattern of child abuse”; and
(7) the court erred in failing to instruct the jury on the definition of “pattern.”

I.

We first address Heden’s argument that the district court erred in denying his motion to suppress statements he made to BCA Agent Hodapp on the day of Rose’s death. Heden argues that the court erred in failing to exclude certain parts of the interrogation that took place in the bedroom. Specifically, Heden argues that after he admitted shaking Rose “too hard” approximately five times, he was in custody and further statements during this interrogation should have been suppressed.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prohibits the admission in evidence of statements made by a suspect during “custodial interrogation” absent procedural safeguards to protect the suspect’s Fifth Amendment rights. Id. at 444, 86 S.Ct. 1602. The state appears to concede that the exchange in the bedroom was an “interrogation” for purposes of Miranda; therefore, the sole issue is whether the interrogation was “custodial.” We make an independent determination about whether a suspect was in custody. State v. Staats, 658 N.W.2d 207, 211 (Minn.2003). But with respect to the facts, we review the district court’s findings for clear error. Id. “We grant ‘considerable, but not unlimited, deference to a trial court’s fact-specific resolution of such an issue when the proper legal standard is applied.’ ” Id. (quoting State v. Champion, 533 N.W.2d 40, 44 (Minn.1995)).

The test for determining whether a suspect was in custody is whether a reasonable person in the suspect’s situation would have understood that he was in custody. Staats, 658 N.W.2d at 211. “ ‘If a suspect has not yet been arrested, a district court must examine all of the surrounding circumstances and evaluate whether a reasonable person in the suspect’s position would have believed he was in custody to the degree associated with arrest.’ ” Id. (quoting State v. Miller, 573 N.W.2d 661, 670 (Minn.1998)). “The test is not whether a reasonable person would believe he or she was not free to leave.” Champion, 533 N.W.2d at 43.

In reviewing the circumstances to determine whether a suspect was in custody, we look to many factors. While no factor alone is determinative, we have noted that the following factors may combine to indicate custody: the police interviewing the suspect at the police station; the police telling the individual that he or she is the prime suspect; the police restraining the suspect’s freedom; the suspect making a significantly incriminating statement; the presence of multiple police officers; and a gun pointing at the suspect. Staats, 658 N.W.2d at 211. We have also recognized circumstances that may indicate that a suspect is not in custody: questioning taking place in the suspect’s home; the police expressly informing the suspect that he or she is not under arrest; the suspect leaving the police station at the close of the interview without hindrance; the brevity of questioning; the suspect’s freedom to leave at any time; a nonthreatening environment; and the suspect’s ability to make phone calls. Id. at 212.

Here, the factors involved lead to a mixed result. Some factors support a finding that Heden was not in custody. Heden was neither under arrest nor informed that he was the prime suspect during the part of the statement at issue. During the 27-minute interrogation, He-den was unrestrained, was either standing or seated on a bed, and looking down at Hodapp, who was seated in a chair approximately four to five feet away. Although there were other police officers in the house, only Hodapp was in the room during the interrogation. At no point did any officer draw a weapon in Heden’s presence.

That Heden made a significantly incriminating statement is a factor that supports a finding that, from that point on, Heden was in custody. But it is not, as Heden argues, dispositive. We have rejected a bright line rule that when a suspect makes a significantly incriminating statement, that statement automatically converts a noncustodial interrogation into a custodial interrogation. Champion, 533 N.W.2d at 43. In Champion, we concluded that an admission to the police that the suspect had suffocated the murder victim did not automatically convert the interview from noncustodial to custodial. Id. at 44.

We note that there are also factors that support neither a finding that Heden was in custody nor a finding that he was not in custody. The interrogation took place in Heden’s home. Although generally an interrogation in the suspect’s home supports a noncustodial finding, here Heden’s home was a crime scene under investigation. Additionally, although Hodapp confirmed with Heden that he was not under arrest, Hodapp did not do so at the beginning of the interrogation. A statement that the suspect is not under arrest cannot support a finding of noncustody before the statement occurred. Finally, although Heden was arrested shortly after the interrogation, Hodapp apparently needed to consult with sheriffs deputies after the interrogation before he made this decision.

We conclude that while the applicable factors lead to a mixed result, the overall circumstances of the interrogation indicate that the court did not clearly err in finding that a reasonable person in these circumstances would believe he was not in custody to the degree associated with arrest. The court applied the proper legal standard. As previously noted, when the district court applies the proper legal standard, we grant considerable deference to the court’s fact-specific resolution. Therefore, we hold that the court did not err in denying Heden’s motion to suppress that part of his third interview given before he received the Miranda warning.

II.

We next address Heden’s assertion that the evidence was insufficient to support a finding either that his digital penetration of three-month-old Rose was done “with force or violence” or that he caused Rose’s death while committing first-degree criminal sexual conduct. Minnesota Statutes § 609.185(a)(2) (2004) provides that a person who “causes the death of a human being while committing or attempting to commit criminal sexual conduct in the first or second degree with force or violence, either upon or affecting the person or another,” is guilty of first-degree murder.

We first address Heden’s “force or violence” argument. Although section 609.185(a)(2) does not expressly define “force or violence,” the statutes governing criminal sexual conduct provide a definition of “force.” See Minn.Stat. § 609.341, subd. 3 (2004). “Force” is defined in part as the infliction, attempted infliction, or threat of infliction of “bodily harm.” Id. “Bodily harm” is defined in the general definitions to the criminal code as “physical pain or injury, illness, or any impairment of physical condition.” Minn.Stat. § 609.02, subd. 7 (2004). We have approved the use of these definitions in interpreting section 609.185(a)(2). See State v. Gutierrez, 667 N.W.2d 426, 434 (Minn.2003). Accordingly, to support a finding that Heden’s digital penetration of Rose was done with force or violence, there must be sufficient evidence that the digital penetration inflicted physical pain or injury or an impairment of Rose’s physical condition.

The state presented evidence of a laceration 1.1 centimeters long and 5 millimeters deep in the lower portion of Rose’s vaginal canal, and that the cause of this laceration was penetration by an oversized object with enough force to tear the tissue, which tearing would have caused Rose pain. The state also presented evidence that this laceration was both old and new. The state’s evidence showed that the original laceration occurred a minimum of two to four days before Rose’s death, but that the injury was re-torn on the date of her death and began to bleed again, which re-injury would have caused Rose pain. The state also presented evidence that Heden admitted to investigators that he digitally penetrated Rose approximately three times up to his second knuckle on the morning of her death, which penetration caused her to bleed. Viewing the evidence in the light most favorable to the verdict, we conclude that a jury could reasonably have found that Heden’s digital penetration of Rose’s vaginal canal caused pain or injury or the impairment of her physical condition, and therefore was done “with force or violence” in satisfaction of Minn.Stat. § 609.185(a)(2).

We now turn to Heden’s assertion that the evidence was insufficient to support a finding that he caused Rose’s death while committing first-degree criminal sexual conduct with force or violence. The specific question we are faced with here is the meaning of “while” in Minn.Stat. § 609.185(a)(2). Heden argues that Rose’s death did not occur “while” he digitally penetrated her because the digital penetration did not cause her death. We conclude that this argument lacks merit.

We have held that in order to prove that a defendant caused the death of a human being while committing criminal sexual conduct, “the state must prove that ‘the “fatal wound” was inflicted during the same “chain of events” [in which the underlying felony took place] so that the requisite time, distance, and causal relationship between the felony and killing are established.’ ” State v. McBride, 666 N.W.2d 351, 365 (Minn.2003) (alterations in original) (quoting State v. Russell, 503 N.W.2d 110, 113 (Minn.1993)). “So long as the underlying felony and the killing are part of one continuous transaction, it is irrelevant whether the felony took place before, after, or during the killing.” State v. Harris, 589 N.W.2d 782, 792 (Minn.1999).

From the time Shawna left for work at approximately 5:15 a.m. until 6:40 a.m. when Heden dialed 911, Heden was the only person with access to Rose except for Rose’s five-year-old half-sister, who was asleep. Dr. McGee testified that Rose’s fatal injuries were consistent with having been inflicted between 6:00 a.m. and 6:40 a.m. By Heden’s own statement to Ho-dapp, he awoke to Rose’s crying and tried unsuccessfully to calm her by giving her a bottle and then a pacifier. Heden then digitally penetrated Rose three times “to see if that’d make any difference on her.” When nothing stopped Rose from crying, Heden said he lost control and shook her.

Viewing the evidence in the light most favorable to the verdict, we conclude that a jury could reasonably have found that He-den shook Rose to death during the same “chain of events” as the digital penetration “so that the requisite time, distance, and causal relationship” between the criminal sexual conduct and the killing has been established. See McBride, 666 N.W.2d at 365. We therefore conclude that the evidence was sufficient to prove that Heden caused the death of Rose while committing first-degree criminal sexual conduct. Having previously concluded that the evidence was sufficient to support a finding that the digital penetration of Rose was done “with force or violence,” we hold that the evidence was sufficient to support Heden’s conviction of causing the death of a human being while committing criminal sexual conduct in the first or second degree with force or violence.

III.

Finally, we are asked to determine whether Heden’s sentence is so excessive and disproportionate to the crime that it constitutes cruel or unusual punishment in violation of Article I, Section 5, of the Minnesota Constitution. Heden was sentenced under Minn.Stat. § 609.106, subd. 2(1) (2004), which provides for a mandatory life sentence without the possibility of release for anyone convicted of first-degree murder while committing or attempting to commit criminal sexual conduct in violation of Minn.Stat. § 609.185(a)(2). “Statutes are presumed constitutional, and a person challenging a sentence as cruel or unusual ‘bears the “heavy burden” * * * of showing that our culture and laws emphatically and well nigh universally reject’ the sentence.” State v. Chambers, 589 N.W.2d 466, 479-80 (Minn.1999) (alteration in original) (quoting Harris v. Wright, 93 F.3d 581, 583 (9th Cir.1996)).

We recently addressed and rejected an identical claim in Gutierrez, 667 N.W.2d at 438. Paul Gutierrez, like Heden, was convicted of first-degree murder while committing or attempting to commit criminal sexual conduct in the first or second degree. Id. at 429. Gutierrez was sentenced to life imprisonment without the possibility of release under Minn.Stat. § 609.106, subd. 2(1). Id. at 438. On appeal, Gutierrez claimed that his sentence constituted cruel or unusual punishment in violation of the Minnesota Constitution. Id. We rejected Gutierrez’s claim. Id. He-den, like Gutierrez, fails to show that “our culture and laws emphatically and well nigh universally reject” his sentence. We therefore hold that Heden’s sentence of life imprisonment without possibility of release does not constitute cruel or unusual punishment.

Because we have affirmed Heden’s conviction of first-degree murder — criminal sexual conduct, we need not address He-den’s arguments regarding the jury’s finding of guilt on first-degree murder — child abuse.

Affirmed.

      . Heden's counsel conceded at oral argument that the digital penetration of Rose qualified as first- or second-degree criminal sexual conduct.

      . Despite the statutory definitions and our recent holding in Gutierrez, Heden argued both in his brief and at oral argument that "with force or violence” requires a separate analysis of "special danger to human life.” To support a conviction for second-degree felony murder under Minn.Stat. § 609.19, subd. 2(1) (2004), the underlying felony must involve "special danger to human life.” State v. Anderson, 666 N.W.2d 696, 700-01 (Minn.2003). But Heden was tried for and convicted of first-degree murder — criminal sexual conduct, not second-degree felony murder.

      The reason there is a “special danger to human life” requirement in the second-degree felony murder statute is to prevent inherently nonviolent felonies — such as property crimes — from serving as a predicate offense for felony murder. See Anderson, 666 N.W.2d at 701 (holding that firearm possession charges cannot serve as a predicate for second-degree felony murder because possession of a firearm is not inherently dangerous); State v. Back, 341 N.W.2d 273, 276 (Minn.1983) (concluding that a property offense can
      support a second-degree felony murder conviction if it involves special danger to human life). But Anderson, Back, and the second-degree felony murder statute they interpret are inapposite here.


text:
    Richard Brian BRUESTLE, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A05-1707.
    Supreme Court of Minnesota.
    Aug. 10, 2006.

      Kyle D. White, St. Paul, MN, for Appellant.
    Michael A. Hatch, Minnesota Attorney General, Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, St. Paul, MN, for Respondent.
   OPINION

ANDERSON, PAUL H., Justice.

On March 5, 2003, appellant Richard Brian Bruestle pleaded guilty to and was sentenced to life imprisonment for the stabbing and shooting death of his aunt. Bruestle did not file a direct appeal or a motion to withdraw his plea within the time allowed for a direct appeal. Bruestle subsequently retained new counsel and filed a postconviction petition, claiming that he was incompetent to plead guilty and that his trial counsel was ineffective due to counsel’s decision not to fully pursue an insanity defense or make an incompetency argument before Bruestle pleaded guilty. The postconviction court denied Bruestle’s petition for relief without holding an evidentiary hearing. We affirm.

On December 7, 2002, Saint Paul police officers responded to a 911 call and, upon arriving at the home of Lorene Nell McIntyre, discovered appellant Richard Brian Bruestle outside the home with blood on his clothing. Bruestle told the officers to shoot him because he had a gun and would shoot them, but instead of continuing to confront the officers, Bruestle threw his gun on the ground and apparently surrendered. Bruestle told the officers that he had killed a woman. He said that he had stabbed the woman 15 times and that there were no bullets in his gun because he had “filled the victim full of lead.” Nearby, the police found McIntyre’s body.

McIntyre was Bruestle’s aunt, with whom he was living at the time of her death. Bruestle told the police officers that he and McIntyre had been arguing about the taste of her chili, and as a result, McIntyre told Bruestle to get out of the house. Bruestle further told the officers that he believed McIntyre attempted to phone 911 as a result of the argument, and that infuriated him. The officers arrested Bruestle at the scene and transported him to jail.

Bruestle was indicted by a grand jury for murder in the first degree, in violation of MinmStat. § 609.185(a)(1) (2004); Minn. Stat. § 609.11 (2004), invalidated by State v. Barker, 705 N.W.2d 768 (Minn.2005) (amended 2006); and murder in the first degree — life without release, in violation of Minn.Stat. §§ 609.185(a)(1), 609.11; Minn. Stat. § 609.106, subds. (l)(b), 2(3) (2004) (amended 2005). A public defender was appointed to defend Bruestle, and the public defender made a motion for a mental examination pursuant to Minn. R.Crim. P. 20.01 and 20.02. The district court ordered the mental examination to determine both Bruestle’s competency and his mental condition at the time of the homicide. At this time, the public defender submitted a request for funding for a Rule 20 examination by an expert. The public defender received a response from the chief public defender, which stated:

We will be having problems with our expert budget soon. This is the type of case that needs experts but we need your cooperation to keep expenses down. If Owen Nelson tells you (and you need to ask) at an early point that he cannot help you, cancel the remainder of his work. We do not need another report which echoes the courts [sic].

District court records indicate — and the postconviction court found — that Dr. Nelson visited Bruestle in jail on December 19, 2002, for an unknown period of time. The district court record does not indicate that Nelson generated a report regarding his visit(s) with Bruestle. On January 30, 2003, the public defender withdrew the motion for a Rule 20 evaluation, stating that “Mr. Bruestle has since stabilized * * *. I think he’s seeing a psychologist [at Ramsey County Adult Detention Center] and getting some medications. So at this time I don’t * * * see any need to have a Rule 20.01 and 20.02 evaluation * ⅜ Bruestle then entered a plea of not guilty.

On March 5, 2003, Bruestle changed his plea and entered a plea of guilty to first-degree premeditated murder. Minn.Stat. §§ 609.185(a)(1), 609.11. Apparently in exchange for this plea to murder in the first degree, the state dismissed the life without release count. At the plea hearing, the public defender told the district court that Bruestle was “very adamant about taking responsibility for his actions, despite my prodding to suggest that there is nothing to lose by going to trial.” Bruestle’s waiver of his rights was put on the record, and, during this part of the proceedings, his counsel specifically questioned Bruestle regarding his waiver of a mental illness defense. The exchange went as follows:

Public defender (PD): Richard, you’re— there are some defenses you’d be waiving by entering this plea here as well. You told me you were drinking that day, and you’re waiving an intoxication defense; do you understand that?
Bruestle (B): Right, yes.
P.D.: And the other defense we talked about is a mental illness defense?
B.: I understand.
P.D.: Finally, I think you’ve got some history of mental illness; you’re taking medication right now?
B.: Correct.
P.D.: Is that affecting the way you’re thinking here today?
B.: It’s actually helping.
P.D.: So, you’re clear-headed?
B.: Yes.
P.D.: You understand what’s going on here today?
B.: Yes.
P.D.: Is this really what you want to do to take care of your case here today?
B.: I deserve it.

Following this exchange, the court made further inquiry into Bruestle’s mental illnesses and mental condition and apparently satisfied itself that Bruestle was competent to proceed with the plea. Bruestle then affirmed for the court that he thought his public defender had given him good counsel and had been supportive and helpful.

In laying the factual basis for his plea, Bruestle stated that he had been living with McIntyre for about 90 days before her murder. Bruestle testified that he sometimes argued with McIntyre, and that on December 7, 2002, they were arguing when he took a knife and began stabbing her and that she ran outside of the house. Bruestle agreed with the autopsy report that he stabbed McIntyre over 30 times. He also testified that after stabbing McIntyre multiple times, he went back into the house, retrieved a gun, brought it back outside, and shot McIntyre five times, emptying the gun in the process. He said that he then went back into the house to get more bullets because he intended to shoot himself. He stated that when he left the house, he confronted the police officers, spoke to them, surrendered, and was arrested. Following Bruestle’s testimony about the facts surrounding McIntyre’s death, the district court convicted Bruestle and sentenced him to the statutory sentence of life imprisonment.

On October 2, 2003, while in prison for McIntyre’s murder, Bruestle attacked a fellow inmate and cut the inmate’s throat, apparently acting without provocation. The district court hearing the prison assault case ordered that a Rule 20 mental evaluation be performed to determine Bruestle’s sanity at the time of the attack and his competence to proceed to trial. In addition to the court-ordered evaluation, Bruestle’s counsel' — a different attorney from the counsel who represented Bruestle in the homicide proceeding — retained an expert to perform an additional Rule 20 evaluation.

Meanwhile, on January 26, 2004, Brues-tle, with the assistance of new counsel, filed the current petition for postconviction relief, asking that the judgment of conviction and sentence against him for McIntyre’s murder be vacated and a new trial ordered or, in the alternative, that an evi-dentiary hearing be held or that his sentence be reduced. Bruestle based his request for relief on his claim that he was incompetent to plead guilty and that his trial counsel was ineffective because he did not pursue an insanity defense or make an incompetency argument.

As part of the postconviction proceeding, the state and the defense submitted three mental evaluations of Bruestle. One is a brief evaluation done to determine whether Bruestle was disabled for the purposes of receiving social security benefits; the other two are the Rule 20 evaluations done regarding the prison throat-cutting incident, one of which was done by the court-appointed evaluator and the other by Bruestle’s expert. All the evaluations recounted Bruestle’s mental health and criminal history. According to the evaluations, at the age of 14 Bruestle held two women at knifepoint and was convicted of raping one of them. Since then he has been in prison for most of his life for various crimes and has been a consistently violent and unpredictable inmate. He has also habitually abused several substances, including alcohol, marijuana, and inhalants such as gasoline, and has used cocaine, heroin, and methamphetamine.

All three of the experts whose evaluations were submitted in this case agreed that Bruestle has low intelligence and mental disturbances, but they did not all agree on the extent of Bruestle’s mental problems or whether he qualifies as mentally retarded. Dr. Robert Barron, the social security disability evaluator, concluded that Bruestle had sufficient mental ability to perform competitive unskilled labor. Dr. Gregory Hanson, the court-appointed Rule 20 evaluator, concluded that Bruestle was competent to proceed to trial at the time of their interview. Dr. Maureen Hackett, the expert hired by Brues-tle, concluded that Bruestle suffers from a cognitive deficit, has never functioned in “an adaptive manner,” and might have brain damage from inhalant use. None of the experts offered an opinion as to whether Bruestle was competent to plead guilty to first-degree murder when he did so on March 5, 2003.

Neither the defense nor the state has provided expert testimony regarding Bruestle’s mental state at the time he killed McIntyre. In the court-ordered Rule 20 evaluation regarding the prison throat-cutting incident, Dr. Hanson concluded that Bruestle did not qualify for an insanity defense. Dr. Hanson stated his opinion that Bruestle was psychopathic, but not psychotic, at the time of the throat-cutting incident, noting that “Mr. Bruestle is paranoid, but this paranoia is mild to moderate in nature and is an aspect of his severe antisocial personality.” Bruestle’s expert, Dr. Hackett, disagreed, stating that “Mr. Bruestle’s assault of another inmate on October 2, 2003 was a completely unprovoked attack in response to paranoid delusions.”

As part of the postconviction proceedings, the state asked Bruestle to waive his attorney-client privilege so that the state could obtain information from Bruestle’s trial counsel regarding the investigation done into Bruestle’s mental state. But Bruestle refused to waive this privilege. He also refused to waive his medical privilege relating to his mental condition, so the state apparently was unable to obtain information from Dr. Nelson regarding his evaluation of Bruestle. The postconviction court then denied relief without an eviden-tiary hearing on June 29, 2005. Bruestle appealed the postconviction court’s denial of relief to our court.

“A petition for postconviction relief is a collateral attack on a conviction that carries a presumption of regularity.” Hummel v. State, 617 N.W.2d 561, 563 (Minn.2000). “A petitioner for posteonviction relief has the burden of establishing the facts alleged in the petition by a fair preponderance of the evidence.” Shoen v. State, 648 N.W.2d 228, 231 (Minn.2002); see Minn.Stat. § 590.04, subd. 3 (2004). “We afford great deference to a postcon-viction court’s findings of fact and will not reverse the findings unless they are clearly erroneous.” Shoen, 648 N.W.2d at 231. Additionally, “[t]he decisions of a postcon-viction court will not be reversed absent an abuse of discretion, and we will consider only whether there is sufficient evidence to support the postconviction court’s conclusions.” Id. On a first postconviction petition, “[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief, the court shall promptly set an early hearing on the petition and response thereto.” Minn.Stat. § 590.04, subd. 1 (2004). Here, the postconviction court did not hold a hearing.

Bruestle argues that the postcon-viction court erred when it dismissed his ineffective assistance of counsel claim and his incompetency claim without holding an evidentiary hearing. Bruestle’s ineffective assistance of counsel claim is based on his contention that his trial counsel erred by failing to adequately pursue Bruestle’s potential insanity defense and incompetency argument. Bruestle asserts that had his counsel not so erred, he would not have pleaded guilty.

A plea may be withdrawn to correct a manifest injustice. Minn. R.Crim. P. 11.05, subd. 1. Under Minn.Stat. § 611.026 (2004), no one may be tried for or plead guilty to a crime if he is incompetent to stand trial due to mental illness or mental deficiency. Minnesota Rule of Criminal Procedure 20.01 states that a defendant is incompetent to stand trial if he: “(1) lacks sufficient ability to consult with a reasonable degree of rational understanding with defense counsel; or (2) is mentally ill or mentally deficient so as to be incapable of understanding the proceedings or participating in the defense.” Additionally, under Minn.Stat. § 611.026, a defendant may be excused entirely from criminal liability if “at the time of committing the alleged criminal act the person was laboring under such a defect of reason, from [a mental illness or deficiency], as not to know the nature of the act, or that it was wrong.” The defense of qualifying insanity at the time of the commission of the crime under section 611.026 is known as the M’Naghten rule. State v. Odell, 676 N.W.2d 646, 647 (Minn.2004). When making a determination about a defendant’s sanity, a court can, in addition to assessing expert witness testimony, look to events surrounding the crime. Davis v. State, 595 N.W.2d 520, 527 (Minn.1999).

In order to succeed in asserting an ineffective assistance of counsel claim, Bruestle must demonstrate (1) that his counsel’s performance “ ‘fell below an objective standard of reasonableness,’ ” and (2) “ ‘that a reasonable probability exists that the outcome would have been different but for [his] counsel[’s] errors.’ ” Voorhees v. State, 627 N.W.2d 642, 649 (Minn.2001) (quoting State v. Lahue, 585 N.W.2d 785, 789 (Minn.1998)); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In other words, in order for the postconviction court to conclude that Bruestle’s trial counsel was ineffective, the court would have to determine (1) that counsel’s decision not to pursue a mental illness or incompetency defense was unreasonable, and (2) that there was a reasonable probability that Bruestle would not have pleaded guilty had his counsel pursued the defense. In order for our court to overturn the postconviction court’s decision, we would have to conclude that the postconviction court abused its discretion in finding no basis for an ineffective assistance of counsel claim.

The petitioner bears the burden of proof on an ineffective assistance of counsel claim, and there is a strong presumption that “ ‘counsel’s performance fell within a wide range of reasonable assistance.’ ” State v. Miller, 666 N.W.2d 703, 716 (Minn.2003) (quoting Lahue, 585 N.W.2d. at 789). We accord particular deference to counsel’s trial strategy. Lahue, 585 N.W.2d at 789. We review the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. See Carney v. State, 692 N.W.2d 888, 892 (Minn.2005).

As previously noted, Bruestle has the burden to prove that his counsel was ineffective, yet he has presented no evidence to that effect. There is no expert testimony in the record regarding either Brues-tle’s mental state at the time he killed McIntyre or at the time he pleaded guilty. The only Rule 20 evaluations in the record were done approximately a year and a half after McIntyre’s murder and deal with Bruestle’s later attack on a fellow prison inmate. There are no affidavits from unaffiliated defense attorney experts to the effect that counsel’s representation of Bruestle fell below an objective standard of reasonableness. Further, Bruestle has withheld the most probative evidence in the case. His refusal to waive medical or attorney-client privileges has rendered unavailable information from Nelson and Bruestle’s trial counsel as to what Nelson’s conclusions were regarding Bruestle’s mental state at the time of McIntyre’s death and why Bruestle’s trial counsel decided not to further pursue a Rule 20 defense. While Bruestle hinted that he might waive these privileges at the eviden-tiary hearing, we 'conclude that the post-conviction court was justified in denying an evidentiary hearing on the record before it. The court was not required to order a hearing merely on the basis of the potential of new, undisclosed information, the import of which Bruestle refused to reveal in his petition.

Bruestle has submitted three mental evaluations unconnected to the McIntyre killing and asks us to draw the inference that, based on these evaluations, he was so likely insane under the M’Naghten rule at the time of the killing, or so likely incompetent at the time of his guilty plea, that his trial counsel’s decision not to pursue a Rule 20 argument constitutes ineffective assistance of counsel. But in the absence of any directly applicable evidence on this question — or even the promise of any such evidence — the postconviction court’s conclusion that an evidentiary hearing could not show that Bruestle’s counsel was ineffective was not an abuse of discretion.

Bruestle further argues that the recent United States Supreme Court case of Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), requires that his plea be withdrawn due to trial counsel’s ineffectiveness. In Rompilla, defendant Rompilla was convicted of a brutal murder and was facing the death penalty. Id. at -, 125 S.Ct. at 2460. Rompilla’s counsel failed to review certain information and evidence, despite having convenient access to the information and evidence, and despite knowing that the state would be presenting the evidence to the sentencing jury as aggravating evidence. Id. at-, 125 S.Ct. at 2463-67. Additionally, Rompilla’s counsel failed to follow up on several obvious leads that, when pursued by posteon-viction counsel, yielded potentially mitigating facts regarding Rompilla’s alcoholism and dysfunctional childhood. Id. at-, 125 S.Ct. at 2463, 2468. The Supreme Court held that because of this failure, Rompilla’s counsel was ineffective and Rompilla deserved a new sentencing hearing. Id. at-, 125 S.Ct. at 2467, 2469. But we conclude that Rompilla is not applicable here because Bruestle’s trial counsel, unlike Rompilla’s counsel, did recognize and pursue the possibility of a Rule 20 defense for Bruestle, but then, upon consultation with an expert, appears to have decided to abandon any Rule 20 defense.

Bruestle also claims that the postconviction court erred in concluding without an evidentiary hearing that he was competent to plead guilty. In support of this claim, he argues that Burt v. State, 256 N.W.2d 633 (Minn.1977), requires that he be granted relief. In that case, Burt represented himself and pleaded guilty to burglary after steadfastly refusing any assistance of counsel. Id. at 634. We noted that, at the time Burt entered his plea, “the court apparently was unaware of any facts which would cast doubt on [Burt’s] capacity to make an intelligent decision whether to waive counsel.” Id. at 635. The presen-tence investigation, however, revealed facts indicating that Burt was “of considerably lower than average intelligence,” casting doubt on his capacity to intelligently waive counsel. Id. at 635-36. But Burt is not helpful here because it dealt with a situation wherein a defendant waived his right to counsel. Being without counsel, Burt had no advocate to bring up or investigate the possibility of incompetency. Bruestle, in contrast, was represented by counsel when he pleaded guilty, and his counsel in fact did conduct an investigation into a possible incompetency argument. Again, Bruestle has produced no evidence that he was incompetent at the time of his plea, and we accordingly will not depart from the judgment of the postconviction court that Bruestle was competent at the time of his plea.

For the foregoing reasons, we conclude that Bruestle has not met his burden of raising an evidentiary question that merits a postconviction hearing, and neither Burt nor Rompilla supports his contention that an evidentiary hearing was merited. Therefore, we hold that the postconviction court did not abuse its discretion when it denied Bruestle’s petition for postconviction relief without holding a hearing.

Affirmed.

      . Murder in the first degree — life without release is available as a possible charge when the defendant has previously been convicted of a "heinous crime” less than 15 years before the murder. Minn.Stat. §§ 609.185(a)(1), 609.11, 609.106, subds. (l)(b), 2(3). As Bruestle had been convicted of rape less, than 15 years before his aunt’s murder, he qualified to be charged with murder in the first degree — life without release.

      . Minnesota Statutes § 611.026 (2004) offers an insanity defense — often referred to as a "M'Naghten " defense — to defendants who can prove that, at the time of the offense, they were “laboring under such a defect of reason, from [a mental illness or mental deficiency], as not to know the nature of the act, or that it was wrong.” See also Minn. R.Crim. P. 20.02. Additionally, section 611.026 provides that no one may be tried for a crime if he is incompetent to stand trial due to mental illness or mental deficiency. See also Minn. R.Crim. P. 20.01.

      . Bruestle's current counsel stated in an affidavit that he spoke to Nelson and Nelson stated that he had seen Bruestle on three occasions: once in December 2002, once in January 2003, and once in February 2003.

      . The Rule 20 evaluations indicate that Brues-tle has been convicted of several crimes, in-eluding robbery, assault, and terroristic threats.

      . Part of Hanson's interview with Bruestle regarding Bruestle's competence was recorded as follows:
      The defendant noted that he has heard of the insanity plea. He defined this as "It means that at the time you committed your crime, you were insane." He was asked to define the term "insane." He stated, "You’re not mentally competent, maybe.” He was asked whether he would consider such a plea in the present case. He responded to this by stating, "A doctor once told me that he thought I was crazy, but not insane.” He was asked his understanding of the difference between "crazy" and "insane.” He stated, "With crazy, you do a lot of spontaneous things. Humorous or comical, but you know right from wrong. In this case, I might be insane, because I didn't know right from wrong. Most people would say I was wrong, but considering the circumstances, I didn't feel I was wrong.” The defendant was asked to define the term plea bargain. He stated, "A plea bargain is like a compromise. You plead guilty to the crime. A lesser offense or crime, and you bypass a trial by taking a plea bargain. You admit your guilt. The consequences are less harsh.”

      . Minnesota Statutes § 611.026 reads:
      No person shall be tried, sentenced, or punished for any crime while mentally ill or mentally deficient so as to be incapable of understanding the proceedings or making a defense; but the person shall not be excused from criminal liability except upon proof that at the time of committing the alleged criminal act the person was laboring under such a defect of reason, from one of these causes, as not to know the nature of the act, or that it was wrong.


author: /s/Helen M. Meyer Associate Justice

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Ira Wilbur WHITLOCK, a Minnesota Attorney, Registration No. 265275.
    No. A06-988.
    Supreme Court of Minnesota.
    Aug. 10, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Ira Wilbur Whitlock committed professional misconduct warranting public discipline, namely, failure to competently effect service of process in a dram shop matter and in failing to timely inform his clients of his failure to effect service, in violation of Rules 1.1 and 1.4, Minnesota Rules of Professional Conduct.

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a public reprimand and payment of $900 in costs and disbursements under Rule 24, RLPR.

This court has independently reviewed the file and has determined that in light of the serious consequences of respondent’s misconduct and respondent’s prior disciplinary history, the appropriate discipline is a 90-day suspension. The suspension is stayed for a period of two years on condition that respondent commit no additional violations of the Rules of Professional Conduct. If at any time during the two-year stayed suspension period the Director files an affidavit with the court attesting that the Director reasonably believes that respondent has further violated the Rules of Professional Conduct, respondent shall be immediately suspended without further hearing for a period of 90 days. Respondent shall be subject to such additional disciplinary proceedings as may be warranted by the nature of respondent’s conduct.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Ira Wilbur Whitlock is suspended from the practice of law for 90 days, suspension stayed subject to the conditions set forth above. Respondent shall pay $900 in costs under Rule 24, RLPR.

BY THE COURT:

/s/Helen M. Meyer Associate Justice


text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Jolie Monique LAHLUM, a Minnesota Attorney, Registration No. 295346.
    No. A06-1325.
    Supreme Court of Minnesota.
    Aug. 10, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Jolie Monique Lahlum, committed professional misconduct warranting public discipline, namely, making false statements about employment and earned income in order to fraudulently obtain unemployment insurance benefits and subsequently pleading guilty to a felony charge of theft, which was amended to a gross misdemeanor upon sentencing, in violation of Minnesota Rules of Professional Conduct 8.4(b) and (c).

Respondent admits her conduct violated the Rules of Professional Conduct, waives her rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is indefinite suspension for a minimum of 18 months.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that effective 14 days from the date of this order, respondent Jolie Monique Lahlum. is indefinitely suspended for a minimum period of 18 months. The reinstatement hearing provided for in Rule 18, RLPR, is not waived. Reinstatement is conditioned upon: (1) successful completion of the professional responsibility examination pursuant to Rule 18(e), RLPR; (2) satisfaction of the continuing legal education requirements pursuant to Rule 18(e), RLPR; and (3) compliance with all of the terms and conditions of respondent’s criminal disposition. Respondent shall pay costs in the amount of $900 pursuant to Rule 24(d), RLPR and shall comply with Rule 26, RLPR, requiring notice of suspension to clients, opposing counsel, and tribunals.

BY THE COURT:

/s/Helen M. Meyer Associate Justice