Billman says he wasn't read his rights

Michael Billman, co-owner of Billman's Construction in Hermantown, told the court Friday that the November day last year when he struck one of his employees with an excavator was "the most traumatic experience" of his life, but he disagrees with the way police interviewed him and reported his rendition of the incident.

Billman and his Duluth defense attorney, David Keegan, were in St. Louis County District Court to argue that Billman's constitutional rights were violated because he was not read his right to remain silent before he was interviewed by Hermantown police.

St. Louis County prosecutor Nathaniel Stumme's position is that Billman voluntarily provided a Hermantown police officer with a statement and that a Miranda warning wasn't required because Billman wasn't in custody at the time.

Billman, 50, of Saginaw is charged with two counts of second-degree assault in connection with the Nov. 4, 2009, incident. The hearing before 6th Judicial District Judge Sally Tarnowski was limited to the narrow issue of whether Billman's statement to police is admissible as evidence against him.

Outside the courtroom after the hearing, Keegan said: "We agree that he

wasn't arrested until the end, but the question is, was he in custody at the time police interviewed him. Would a reasonable person believe that they were free to leave?"

According to the criminal complaint:

Billman was operating a John Deere excavator digging out the footings for an apartment complex near Green Acres and Kari Lane in Hermantown. Matthew Anderson was working for Billman.

Billman told police he told Anderson he was ruining the trench and to get out of it. He said he became angry because Anderson threw down an expensive piece of equipment and began mouthing off to him.

Billman said he swung the excavator bucket to the left to nudge Anderson. He said it was a "stupid thing to do" and that he didn't intend to hurt his employee.

Anderson said the excavator bucket knocked him on his back. The bucket continued pinning him on the ground and he felt himself sinking in the dirt. He said Billman then swung the bucket away and yelled "You don't (expletive deleted) with me."

Anderson rolled over and saw that his pants were torn up and he had blood on his stomach. He said Billman then began apologizing to him saying: "I didn't mean to hurt you. I just wanted to nudge you."

According to Anderson, Billman also said, "(Expletive deleted) this is an assault. I didn't mean to do that."

Anderson was transported to the hospital. He was bruised but suffered no broken bones, according to the complaint.

Hermantown police Officer Jon Esterbrooks testified that he questioned Billman at the hospital. Esterbrooks said Billman was mumbling rapidly and was "pretty frantic."

"He just came forward and told me what happened," the officer said. He also said Billman was concerned for Anderson's welfare.

Esterbrooks said he questioned Billman for about 10 minutes and then left the room. He said he gave no orders to Billman about what he could or couldn't do. He talked to his supervising sergeant and was told Billman would be charged with second-degree assault.

Billman testified he was under the impression that he couldn't leave after being questioned by Esterbrooks. "He told me to stay put. ... Yes, I stayed put," Billman said.

Tarnowski gave Keegan until Jan. 17 to file written arguments in support of his position. Stumme has until Jan. 17 to respond.