This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed July 3, 2000
Thomas J. Harbinson, Scott County Attorney, Fatima Batie, Michael J. Groh, Assistant County Attorneys, 200 Fourth Avenue West, Shakopee, MN 55379-1220 (for appellant State of Minnesota)
Mark D. Nyvold, 46 East Fourth Street, Suite 1030, St. Paul, MN 55101 (for respondent J.M.B.)
Considered and decided by Shumaker, Presiding Judge, Huspeni, Judge, and Poritsky, Judge.**
The state appeals from a pretrial order suppressing a juvenile’s confession to sexual contact with the victim, arguing that the district court erred in determining that statement was involuntary. We affirm.
A juvenile delinquency petition charged respondent J.M.B. with second-degree criminal sexual conduct, a felony in violation of Minn. Stat. § 609.343, subd. 1(a) (1998). Thirteen-year-old J.M.B. allegedly sexually abused a three-year-old while babysitting. When medical personnel interviewed the alleged victim the next day, she stated that J.M.B. had touched her genital area the day before.
Several weeks later, J.M.B.’s mother brought him to the police station for an interview. In a station interview room, police detective Chris Olson questioned J.M.B. about the allegation. Olson explained that the interview was being videotaped so he did not have to take notes. Olson noted that J.M.B. had certain rights, one of which was that J.M.B. did not have to be there. Olson stated, “No matter what you tell me today you’re not going to get arrested, you’re not, you know nothing like that’s going to happen.” Olson said that he wanted to make it clear to J.M.B. that the interview was voluntary and that if J.M.B. felt uncomfortable he would not be forced to stay in the room. J.M.B. initially denied any sexual contact. Olson told J.M.B. that, if any sexual contact occurred, it was not a big deal and that he would not go to jail. J.M.B. continued to deny inappropriate sexual contact. Olson said that for eight different reasons he could tell that J.M.B. was not telling the truth. Olson stated that if J.M.B. was honest and told the truth, it would be kept confidential between him and his mother and that he could get counseling. J.M.B. eventually made some incriminating statements in response to repeated questioning.
After a hearing, the district court granted J.M.B’s motion to suppress, concluding that considering the totality of the circumstances, the state had failed to show by a preponderance of the evidence that the statements were voluntary. The state appeals.
When reviewing pretrial rulings on motions to suppress evidence, this court “may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). In a pretrial appeal, this court will
reverse the determination of the trial court only if the state demonstrates clearly and unequivocally, first, that the trial court erred in its judgment and, second, that unless reversed, the error will have a critical impact on the outcome of the trial.
State v. Kim, 398 N.W.2d 544, 547 (Minn. 1987).
Before deciding whether the suppression was in error, we must first address the threshold issue of whether the suppression is of critical impact. State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998).
Critical impact has been shown not only in those cases where the lack of the suppressed evidence completely destroys the state’s case, but also in those cases where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution.
Kim, 398 N.W.2d at 551. Suppression of a confession to criminal sexual conduct normally will significantly reduce the likelihood of successful prosecution. State v. Ronnebaum, 449 N.W.2d 722, 724 (Minn. 1990). Here, where the alleged victim is the only eyewitness to the alleged incident, we conclude that suppression of J.M.B.’s admissions would have a critical impact on the outcome of trial.
Due process permits admission of confessions only if freely and voluntarily given. Haynes v. Washington, 373 U.S. 503, 513, 83 S. Ct. 1336, 1343 (1963). The state “must show by a preponderance of the evidence that the defendant gave the confession voluntarily.” In re Welfare of G.M., 560 N.W.2d 687, 696 (Minn. 1997). An incriminating statement made to the police by a juvenile will be regarded as voluntary if the totality of the circumstances show that the statement was the product of a free-will decision. Id.
This inquiry includes a consideration of factors such as the child’s age, maturity, intelligence, education, experience, the presence or absence of parents, and the ability to comprehend.
In deciding whether a defendant’s custodial statement was involuntary and should be suppressed, a trial court should make specific factual findings at the omnibus hearing. See State v. Buchanan, 431 N.W.2d 542, 551 (Minn. 1988) (citation omitted). A reviewing court will not reverse those factual findings unless they are clearly erroneous, but will “make its own independent evaluation of whether the waiver was knowing, intelligent and voluntary, based on the facts as found.” Id. at 552 (citation omitted).
In this case, the district court considered a number of factors in reaching the determination that the statement was involuntary. The court noted that J.M.B. was young, somewhat immature, and inexperienced in criminal and police matters. The court indicated that the absence of a parent during the interview was an extremely important consideration. “Most troubling” to the district court was Detective Olson’s repeated representations that J.M.B. would not be arrested or go to jail, which the court felt amounted to a promise that there would be no formal repercussions. The court also stated that the lack of a Miranda warning was very significant. Finally, the court focused on J.M.B.’s ambivalence in his willingness to be interviewed and the strong likelihood that he did not comprehend the seriousness of the allegations.
The state contends the record is clear that there was not the requisite coercive police conduct for suppression.
Coercive police activity is a necessary predicate to a finding that a statement is involuntary within the meaning of the Due Process Clause of the Fourteenth Amendment. Threats or intimidating techniques, however, are not required for a court to find that the police exercised improper influence. The question is whether the defendant’s will was overborne.
State v. Riley, 568 N.W.2d 518, 525 (Minn. 1997) (citations omitted). Here, the district court indicated that the detective’s repeated minimization of the alleged conduct and its consequences amounted to improper coercive promises. See State v. Gard, 358 N.W.2d 463, 468 (Minn. App. 1984) (citation omitted) (police should not make implied or express promises to encourage confession).
The state argues that contrary to the trial court’s findings, the detective made no promises to the juvenile, but was merely predicting future events. The detective stated that no matter what J.M.B. told him, he would not be arrested and that “nothing like that’s going to happen.” The detective told J.M.B. that if any sexual contact occurred, it was not a big deal, it was “normal experience stuff,” and that J.M.B. would not go to jail. The detective told J.M.B. that, if he told the truth, people would not know about it; the detective stated that he could tell J.M.B.’s mother “let’s just keep it between you and [J.M.B.].” Rather than merely predicting future events, the detective was offering assurances to J.M.B. that there would be no adverse consequences from telling the truth. The record supports the district court’s finding that the detective’s repeated representations amounted to an assurance that there would be no formal repercussions.
In this case, the detective minimized the alleged conduct and the likely consequences in order to induce a confession. The court considered the coercive promises as one factor among many. Finally, the court emphasized J.M.B.’s lack of experience and understanding, and his apparent ambivalence and unwillingness to describe the alleged conduct. Given the totality of these circumstances, the state cannot establish that the district court’s determination was clear and unequivocal error.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
** Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 Because there is no claim that the interview was a custodial interrogation, there is likewise no claim that lack of a Miranda warning alone would have been sufficient to justify suppression. See State v. Edrozo, 578 N.W.2d 719, 724 (Minn. 1998) (without a Miranda warning, statements made during custodial interrogation are generally inadmissable).