This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-97-662

State of Minnesota,

Respondent,

vs.

Eugene (NMN) Fain,

Appellant.

Filed December 30, 1997

Affirmed

Short, Judge

Ramsey County District Court

File No. K4962456

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

Susan E. Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

SHORT, Judge

A jury convicted Eugene Fain of second-degree intentional murder in violation of Minn. Stat. § 609.19, subd. 1(1) (1996). The trial court sentenced Fain to a presumptive term of 313 months imprisonment. On appeal, Fain argues the trial court committed reversible error in failing to suppress his confession because: (1) the police did not assist him in vindicating his right to counsel; and (2) his confession was involuntary and the product of an unnecessary delay in arraignment. We affirm.

D E C I S I O N

The trial court determines the circumstances under which a defendant makes a statement against interest. State v. Williams, 535 N.W.2d 277, 286 (Minn. 1995). On appeal, we will accept those factual findings unless they are clearly erroneous. Id. However, we apply constitutional principles and make an independent determination as to whether a confession was voluntarily given. Id.

I.

Fain argues the trial court erred in failing to suppress his confession because the police did not assist him in vindicating his right to counsel. See Fare v. Michael C., 442 U.S. 707, 717, 99 S. Ct. 2560, 2568 (1979) (holding accused must be advised of right to remain silent and right to assistance of counsel during custodial interrogations in order to protect accused's Fifth and Fourteenth Amendment rights against compelled self-incrimination). We disagree. Prior to confessing, Fain: (1) was given a Miranda warning; (2) stated he understood his rights; (3) made an ambiguous statement regarding the need to contact his mother to obtain an attorney to get him out of jail; (4) was asked to clarify whether he wished to have an attorney present; and (5) declined to have an attorney present. There is no evidence Fain asked for and was refused the assistance of an attorney. Under these circumstances, we conclude Fain was informed of his right to counsel and waived that right. The trial court properly found Fain was not deprived of an opportunity to contact counsel. See Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85 (1981) (holding accused may voluntarily, knowingly, and intelligently waive right to remain silent or right to counsel, and make statement or answer question).

II.

Fain also argues the trial court erred in failing to suppress his confession because it was involuntarily given. See Arizona v. Roberson, 486 U.S. 675, 680-81, 108 S. Ct. 2093, 2097-98 (1988) (concluding defendant's statement must be suppressed when defendant has been coerced). While in custody, however, Fain: (1) was twice given Miranda warnings and stated he understood his rights; (2) was not physically abused or threatened; (3) knew he could contact an attorney; (4) agreed to proceed without an attorney present; and (5) gave an incriminating statement. Under these circumstances, we cannot say Fain was coerced or his will was overborne when he confessed to the crime. See State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991) (concluding when determining whether statement is voluntary, courts examine effect that totality of circumstances had upon will of defendant and whether defendant's will was overborne when he confessed); State v. Andrews, 388 N.W.2d 723, 732 (Minn. 1986) (holding an incriminating statement made to police is voluntary if totality of circumstances indicate statement was product of free-will decision).

Fain further argues the trial court erred in failing to suppress his confession because it was the product of an unnecessary delay in arraignment. See Minn. R. Crim. P. 4.02, subd. 5(1) (requiring defendant, who has been arrested without warrant, appear in court without unnecessary delay and not more than 36 hours after arrest, excluding day of arrest, Sunday, and legal holidays). Although the state concedes Fain was not arraigned within 36 hours of his arrest, a violation of Rule 4.02 does not automatically lead to the exclusion of evidence. See State v. Wiberg, 296 N.W.2d 388, 392 (Minn. 1980) (concluding not appropriate to exclude reliable evidence reasonably related to violation of Rule 4.02 in every case in which violation occurs). The record demonstrates: (1) excluding the day of his arrest and that Sunday, Fain's arraignment occurred 37 1/2 hours after his arrest; (2) Fain confessed 24 hours after his arrest, which was one full day before he was required to be arraigned under Rule 4.02; and (3) Fain was not prejudiced by the delay. Given these facts, the state's technical violation of Rule 4.02 does not necessitate excluding Fain's confession. See Wiberg, 296 N.W.2d at 393 (concluding when determining whether to exclude evidence because of Rule 4.02 violation, courts must consider how reliable evidence is, whether delay was intentional, whether delay compounded effects of other police misconduct, and length of delay); see also State v. Case, 412 N.W.2d 1, 4 (Minn. App. 1987) (declining to vacate defendant's conviction, based on Rule 4.02 violation, when defendant was not prejudiced by delay), review denied (Minn. Oct. 28, 1987).

Even if we determined Fain's confession was admitted erroneously, the error is harmless beyond a reasonable doubt because Fain was identified by several witnesses and the other suspect, expert testimony supported the other suspect's version of the facts, and Fain himself, independent of confession, admitted being at the crime scene before and after the shooting, giving a gun to the second suspect, and hiding the gun after the shooting. Given these facts, the confession did not substantially affect the verdict. See State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990) (holding error is harmless absent reasonable likelihood that it substantially affected verdict); State v. Forcier, 420 N.W.2d 884, 887 (Minn. 1988) (holding constitutional error harmless because court convinced beyond reasonable doubt that Miranda violation did not have substantial or significant impact on verdict).

Affirmed.