This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of:
Filed November 28, 2006
Hennepin County District Court
File No. J0-03-64209
Mike Hatch, Attorney General, 1800
John M. Stuart, State Public Defender, Richard A. Schmitz, Assistant
State Public Defender,
Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Harten, Judge.
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 Appellant’s probation was revoked and his 165-month stayed adult sentence was executed.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.
D E C I S I O N
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 (
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.
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.”
attempts to distinguish
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).