No Published Court of Appeals Criminal Opinions, But Important Unpublished Opinion on Granting a Defendant Use Immunity During Probation Revocation Hearing Based on Allegation of New Crime

State v. Watts, Minn.Ct.App. (12/31/2012, Unpublished).  Well, that’s a mouth full up there in the title bar.  This is a recurring play for prosecutors and the courts, especially in domestic abuse cases.  A defendant is placed on probation with the condition that he remain law abiding.  He doesn’t.  He goes back to his baby mama’s crib despite the domestic abuse no contact order; everything’s fine for a few hours, days, then the 911 call and the new criminal charge.  The state moves to revoke the probation, based solely on the new charge.  Defendant moves to postpone the hearing pending resolution of the new charge, arguing, in part, that he can’t testify at the revocation hearing without waiving his Fifth Amendment rights.

Here, Mr. Watts violated probation in between sentencing and reporting to the workhouse.  Mr. Watts objected to the revocation hearing and requested a continuance; he did not request use immunity.  The state objected to the continuance and the court denied the defense motion, revoked Mr. Watts’ probation and sent him to prison.  On appeal, Mr. Watts made a due process argument, not a Fifth Amendment argument, that the district court abused its discretion by not offering him limited use immunity.  The criminal rule, 27.04, subd. 2(4)(c), only says that the court may postpone the revocation hearing when the violation report alleges a new crime, so the grant or denial of a postponement request is a discretionary ruling unlikely ever to be reversed on appeal.  The appellate courts have never held that the district court must unilaterally offer use immunity to a defendant so that he may testify at the revocation hearing.  See State v. Hamilton, 646 N.W.2d 915 (Minn.Ct.App., 2002), abrogated in part on other grounds, State v. Modtland, 695 N.W.2d 602 (Minn. 2005). 

Left undecided here is what should happened when a defendant does request use immunity.  Judge Cleary, concurring, says that if the district court chooses to go ahead with the revocation hearing, “best practice” should be to confer use immunity whether a defendant requests it or not.  Without that grant, Judge Cleary believes that the hearing should be postponed, although he acknowledges that the current rule does not require that.  Judge Cleary suggests that it’s time to change to rule to require that postponement, again when the revocation allegation is solely the commission of a new crime.