This opinion will be unpublished and
may not be cited except as provided by
†Minn. Stat. ß 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
State of Minnesota,
Troy Alan Pederson,
Pennington County District Court
File No. K500782
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN† 55103; and
Delray L. Sparby, Ihle & Sparby, P.A., 312 North Main Avenue, P.O. Box 574, Thief River Falls, MN† 56701 (for respondent)
Richard L. Swanson, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN† 55318 (for appellant)
††††††††††† Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
In this appeal from a DWI conviction, appellant Troy Alan Pederson argues that because the officer who testified did not personally observe that Pederson was provided access to a telephone, the evidence was insufficient to establish that his limited right to counsel was vindicated.† We affirm.
††††††††††† Thief River Falls Police Officer Sean Huset was on patrol when a motor vehicle hit a fire hydrant.† The vehicle backed up and drove away.† Huset stopped the vehicle, and the driver was identified as appellant Troy Pederson.
††††††††††† After Huset observed several indicia of intoxication and Pederson failed field sobriety tests, Huset arrested Pederson for DWI and transported him to the law enforcement center.† At the law enforcement center, Huset read Pederson the implied-consent advisory.† Pederson indicated that he understood the advisory and that he wished to consult with an attorney.
††††††††††† Huset testified as follows about Pederson being provided with a telephone book and access to a telephone:
††††††††††† Q.† What did you do [after Pederson indicated that he wished to consult with an attorney]?
††††††††††† A.† A telephone book was made available to him at that time.
††††††††††† Q.† Was a telephone made available to him?
††††††††††† A.† Yes.
††††††††††† Q.† At what time did that occur?
††††††††††† A.† 0139 hours.
††††††††††† Q.† And did [Pederson] use the phone or the telephone book?
††††††††††† A.† I believe he did. Usually the jailer takes him back to the phone.
††††††††††† Q.† How long did he use the telephone?
††††††††††† A.† Approximately Ė I donít know how long he was on the phone.† I didnít see him how long he was on the phone.
††††††††††† Q.† What time was he through with the phone?
††††††††††† A.† At Ė well, 0145 is when he had completed it.
††††††††††† Q.† And what happened at 1:45 a.m.?
A.† Thatís when I had determined that he was done making an effort to contact an attorney.
††††††††††† Q.† How did you determine he was done?
††††††††††† A.† He wasnít making anymore attempt.
††††††††††† Q.† Did you ask him if he was through with the phone?
††††††††††† A.† Yep - yes.
††††††††††† Q.† And what was his response?
††††††††††† A.† I donít remember.
††††††††††† * * *
Q.† If he had wanted to continue using the phone would you have allowed him to?
††††††††††† A.† Yes.
††††††††††† Q.† Did you ever place any limits on the phone calls he could make?
††††††††††† A.† No.
††††††††††† Q.† Did you ever take the phone away from him?
††††††††††† A.† No.
* * *
††††††††††† Q.† If he had asked for more time would you have documented that?
††††††††††† A.† Yeah, I would have increased his time.
On cross-examination, Huset testified:
††††††††††† Q.† * * * And then after he said that he wanted to speak with an attorney did you leave him alone then?
††††††††††† * * * *
††††††††††† A.† Then he was given over to the jailer who took him back to the phone.
††††††††††† * * * *
††††††††††† Q.† Do you know if he made any attempt to make a phone call?
††††††††††† A.† Well, he went back to the phone.
††††††††††† Q.† Right.† You said telephones are made available, were they made available for him when he was walked back there by the jailer?
††††††††††† A.† Yeah.
††††††††††† Q.† All right.† Did you give him a telephone - telephone book so he could use them?
A.† Yeah, he had a telephone book.
††††††††††† Q.† How do you know that if you werenít there?
††††††††††† A.† Well, because he took the one out of booking.
††††††††††† Q.† All right.† Okay, so it seems to me that according to this report that a telephone was made available at 0139 hours and stopped at 0145 hours, that is correct?
††††††††††† A.† Yep.
††††††††††† * * * *
††††††††††† Q.† * * * So he was given six minutes to use the phone?
††††††††††† A.† He was given whatever time he wanted to use the phone.† At 0145 he was back in the booking room at that point and [I] asked him if he wanted to contact another attorney and apparently there was nothing because * * * I asked him if he was going to make any other attempt, he said no, so then I stopped the time.
††††††††††† Pederson consented to a breath test, which showed an alcohol concentration of .23.† Pederson was charged by complaint with multiple counts of violating Minn. Stat. ß 169.121, subd. 1 (Supp. 1999).† Pederson moved to suppress the breath-test result on the ground that his limited right to counsel had not been vindicated.† Following an omnibus hearing, the district court concluded that Pedersonís limited right to counsel had been vindicated.† The parties submitted the case to the district court for decision based on stipulated facts, and the court found that Pederson ďwas provided with a phone book and access to a telephone.Ē† The court found Pederson guilty of gross-misdemeanor driving with an alcohol concentration of .20 or more in violation of Minn. Stat. ß 169.121, subd. 1(f) (2000).†
††††††††††† Whether an officer vindicated a driverís right to counsel is a mixed question of law and fact.† Kuhn v. Commír of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).† Once the facts are established, this court makes a legal determination as to whether the driver ďwas accorded a reasonable opportunity to consult with counsel based on the given facts.Ē† Id. The district courtís findings of fact will not be reversed unless they are clearly erroneous.† Thompson v. Commír of Pub. Safety, 567 N.W.2d 280, 281 (Minn. App. 1997), review denied (Minn. Sept. 25, 1997).
††††††††††† A driver stopped for DWI has a limited right to a reasonable amount of time to attempt to consult with counsel by telephone before deciding whether to comply with the statutory requirement of implied-consent testing.† Minn. Stat. ß 169.123, subd. 2(b)(4) (Supp. 1999); Friedman v. Commír of Pub. Safety, 473 N.W.2d 828, 837 (Minn. 1991).
††††††††††† A limited right to counsel means the right to consult with a lawyer of the driverís own choosing.† A police officer not only must inform the driver of the right to counsel but also must assist in vindicating this right.† A police officer may vindicate a driverís limited right to counsel by providing a telephone and a reasonable amount of time to contact and speak with an attorney.
Gergen v. Commír of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996) (citations and quotation omitted), review denied (Minn. Aug. 6, 1996).
††††††††††† Huset testified that a telephone was made available to Pederson and that Pederson was given whatever time he wanted to use the phone.† This testimony supports the district courtís conclusion that Pedersonís limited right to counsel was vindicated.† Pederson argues, however, that Husetís testimony was insufficient to demonstrate that Pedersonís limited right to counsel was vindicated because Huset was not present in the room where a jailer brought Pederson to use a telephone and therefore, Huset lacked personal knowledge that Pederson was provided access to a telephone.
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.
Minn. R. Evid. 602.
Pederson is correct that the record does not indicate that Huset personally observed that Pederson had access to a telephone.† But Pederson did not object to the admission of Husetís testimony.† Generally, failure to object to the admission of evidence constitutes a waiver of the right to appeal on that basis.† State v. Bauer, 598 N.W.2d 352, 363 (Minn. 1999); see also State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (defense counselís failure to object to any lack of foundation for applying hearsay exclusion and his failure to make a record to demonstrate why the exclusion should not apply denied the district court the opportunity to evaluate his objection and denied the state the opportunity to provide additional foundation for admitting the testimony if the court had deemed it necessary).† Pedersonís failure to object to Husetís testimony, constitutes a waiver of his right to appeal on that basis.
Despite Pedersonís failure to object, an appellate court has discretion to consider a waived issue if there is (1) error, (2) that is plain, and (3) the error affected the defendantís substantial rights.† State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.
Even if all three prongs are met in this case, it is not necessary for us to address the admission of Husetís testimony to ensure fairness and the integrity of the DWI proceeding.† It is apparent from a review of the transcript of the joint implied-consent and omnibus hearing that when Pederson told Huset that he wished to consult with an attorney, Huset had a jailer escort Pederson to a room with a telephone, and, therefore, Huset did not have personal knowledge that Pederson had access to a telephone.† But even though Husetís lack of personal knowledge was apparent, there was no objection to Husetís testimony, and the testimony was admitted.†
Under the facts of this case, there is no basis to conclude that the admission of Husetís testimony was either unfair or caused by a lack of integrity in the DWI proceeding.† Although Huset did not actually see where the jailer took Pederson, there is no apparent reason why Huset would not have known where the jailer was taking Pederson, and therefore, there is no obvious reason why Pederson should have viewed Husetís lack of personal knowledge as anything more than a technical failure to comply with rule 602.† Consequently, without an objection, there was no reason for the district court to think that Pederson considered Husetís lack of personal knowledge to be anything more than a technical violation that did not warrant an objection.† Even on appeal, Pederson does nothing more than raise hypothetical possibilities, such as that he was not taken to a telephone.† He offers no explanation for his failure to object and no explanation why the admission of Husetís testimony was unfair or indicated a lack of integrity in the proceeding.† Absent any argument why the admission of Husetís testimony was unfair or indicated a lack of integrity in the proceeding, we decline to consider this waived issue.†