This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






In the Matter of the Welfare of:




Filed November 28, 2006


Harten, Judge*


Hennepin County District Court

File No. J0-03-64209


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street., St. Paul, MN 55101; and


Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent State of Minnesota)


John M. Stuart, State Public Defender, Richard A. Schmitz, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant M.G.B.)


            Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant challenges the revocation of his extended-juvenile-jurisdiction (EJJ) probation on the ground that he was not offered use immunity for his testimony at the revocation hearing.  Because we see no error in the district court’s application of the law, we affirm.



In December 2003, appellant M.G.B., then 15, was found guilty of two counts of second-degree attempted murder, one count of assault for the benefit of a gang, and one count of first-degree assault.  He was placed on EJJ probation with a stayed adult sentence of 165 months.

In May 2005, an apprehend-and-detain warrant based on numerous alleged probation violations was issued for appellant.  In December 2005, appellant was arrested after police saw shots fired from the rear window of a car in which appellant was a back-seat passenger.

At his probation revocation hearing, the district court allowed appellant to use his Fifth Amendment right when questioned about the incident that led to his arrest.  Appellant’s probation was revoked and his 165-month stayed adult sentence was executed.  He challenges the revocation and execution, arguing that the district court erred in not granting him use immunity.



            This court reviews de novo the question of whether a district court violated a defendant’s Fifth Amendment privilege against self-incrimination.  In re Contempt of Ecklund, 636 N.W.2d 585, 587 (Minn. App. 2001).  The application of a statute to the undisputed facts of a case is a question of law subject to de novo reviewId. at 590.

            Use immunity is governed by Minn. Stat. § 609.09, subd. 1 (2004), which provides in relevant part that, “if the prosecuting attorney, in writing” requests a judge to order a witness to testify or produce evidence, and the witness would otherwise have been privileged to withhold the testimony or evidence, no use may be made of the testimony or evidence against the witness in a criminal case.  The statute applies to any criminal proceeding including a proceeding in juvenile court.  Id.  “It is clear under the statute and caselaw that the prosecutor must request a grant of immunity in writing for Minn. Stat. § 609.09, subd. 1  to be applicable.”  Ecklund, 636 N.W.2d at 590.  The state contends, and appellant does not refute, that no written request for a grant of immunity was submitted to the prosecutor.  Therefore, Minn. Stat. § 609.09, subd. 1, providing use immunity, does not apply.

Appellant relies on State v. Phabsomphou, 530 N.W.2d 876, 879 (Minn. App. 1995), for the rule that failure to postpone revocation hearing until after trial on new criminal charges that are the basis for revocation does not violate right to due process and jury trial.  “By offering appellant limited use immunity for all statements made at the revocation hearing, the district court adequately protected appellant’s due process and jury trial rights.”  Id.  But Phabsomphou is distinguishable; in that case, the new criminal charges were the sole basis for revocation; here, an apprehend-and-detain warrant had been issued for appellant months before the incident giving rise to the criminal charge.[1]  Moreover, “Phabsomphou did not obligate the district court to unilaterally offer a defendant limited-use immunity at the revocation hearing.” State v. Hamilton, 646 N.W.2d 915, 919 (Minn. App. 2002). 

            Appellant attempts to distinguish Hamilton by arguing that the defendant in that case did not testify at the revocation hearing.  But Hamilton specifically rejects as “too speculative and remote” the argument that, if the defendant had been offered use immunity, he might have testified.  Hamilton, 646 N.W.2d at 919. 

            Here, portions of the transcript provided in appellant’s brief show that appellant requested to be allowed to testify and to invoke the Fifth Amendment when questioned about the new criminal charge.  The district court granted that request.  The prosecutor was not asked to request use immunity, and absent a prosecutor’s request, the district court has no obligation to order appellant to testify under Minn. Stat. § 609.09, subd. 1 (2004).


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] We note that the prosecutor’s involvement in a Minn. Stat. § 109.09, subd. 1 request was not an issue in Phabsomphou.