This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-1195

 

State of Minnesota,

Respondent,

 

vs.

 

Harold Bert Kramer, Jr.,

Appellant.

 

Filed May 25, 2001

Affirmed

Willis, Judge

Concurring specially, Amundson, Judge

 

Houston County District Court

File No. K899356

 

 

Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Richard W. Jackson, Jr., Houston County Attorney, Courthouse, Caledonia, MN  55921 (for respondent)

 

Melissa Sheridan, Assistant State Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN  55105 (for appellant)

 

            Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Willis, Judge.


U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges his conviction of second-degree murder for the killing of his three-year-old son, arguing that the district court erred by not suppressing a confession he made to the police after asserting his constitutional right to remain silent.  He also argues that the district court abused its discretion by granting the state’s motion to dismiss a charge of second-degree manslaughter.  Because appellant was in custody when he confessed and the police failed to honor the unambiguous and unequivocal invocation of his right to remain silent, we conclude that the district court erred in admitting his confession.  But because the state has met its burden of demonstrating that the erroneous admission of his confession did not contribute to appellant’s conviction and because the district court did not abuse its discretion by dismissing the charge of second-degree manslaughter, we affirm. 

FACTS

Following a jury trial in Houston County District Court, appellant Harold Bert Kramer, Jr. (Kramer), was found guilty of second-degree intentional murder under Minn. Stat. § 609.19, subd. 1(1) (1998); second-degree felony murder under Minn. Stat. § 609.19, subd. 2(1) (1998); and child endangerment under Minn. Stat. § 609.378, subd.  1(b)(1) (1998) for the killing of his three-year-old son, Kenny Kramer.  Kramer was sentenced to 480 months in prison for the conviction of second-degree intentional murder.  Before trial, Kramer moved to suppress several statements he made to the police.  These include statements made to agents of the Federal Bureau of Investigation (FBI) and Minnesota Bureau of Criminal Apprehension (BCA) in a May 18, 1999, interrogation, during which he admitted to killing his son.  Kramer argued that his confession was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).  The district court denied Kramer’s motion to suppress.  In this direct appeal, Kramer again challenges the admissibility of his May 18, 1999, confession.  Kramer also argues that the district court abused its discretion in granting the state’s motion to dismiss a charge of second-degree manslaughter under Minn. Stat. § 609.205(1) (1998).

The facts giving rise to Kramer’s conviction are these:  In 1997, Kramer, Kenny, and Kramer’s girlfriend, Dawn Buroker, moved into a mobile home in Hokah.  In November 1998, Kramer and Buroker were engaged to be married, but Buroker called off the engagement in February 1999.  Kramer’s parents, Margaret and Harold Kramer, Sr., invited Kenny to stay with them at their mobile home in Brownsville to give Kramer and Buroker an opportunity to work on their relationship.  But in March 1999, Buroker moved out and Kramer joined Kenny at his parents’ Brownsville home.  The lease on the Hokah mobile home ran through May 1999, and Kramer and Buroker left many of their possessions there after they moved out, including Buroker’s typewriter.

Kramer was distraught over the break-up.  During March 1999, he left several notes for Buroker with her coworkers; in these notes he pleaded for her to rejoin him and Kenny as a family.  Buroker, who was very close to Kenny, continued to visit him at least once a week in Brownsville.  During one visit in March or April, Kramer showed her a typewritten note, which he claimed had been left in his car.  The note threatened that Kenny would be hurt if Buroker and Kramer did not start acting like a family again.  In late April, Kramer’s father found in his car a note that stated that Kramer was under hypnosis and that in order to break the hypnotic spell, Buroker and Kramer must meet in a park in LaCrosse, Wisconsin, and Buroker must say, “I love you, Kenny, I love you Howey, and I want to get married.”

In the early morning of May 10, 1999, Kenny was abducted from his grandparents’ Brownsville home.  The night of the abduction, Kramer left his parents’ home at 11:00 p.m. to go to the home of a friend, Matt Bankes.  At 1:30 a.m., he left Bankes’s home.  Kramer later claimed that he was driving around aimlessly near LaCrosse when, at 3:45 a.m., he was forced off the road and assaulted by two men who told him, “We have your son.”  Rather than return to his parents’ mobile home, he drove to the apartment of a friend, Ed Hikes, in West Salem, Wisconsin, arriving there at 4:15 a.m.  Kramer told Hikes and his wife, Jamie, about the assault, and Jamie called the police.  While waiting for the police, Kramer called his parents two or three times but only reached their answering machine.  Kramer then called Bankes, told him about the assault, and asked him to go to his parents’ home and have them call Kramer at the Hikeses’ home.  Bankes left two messages on Kramer’s parents’ answering machine.  As Bankes was leaving to go to their home, Harold, Sr., returned his call.  Bankes told Harold, Sr., to call his son at the Hikeses’.  At 4:30 a.m., Harold, Sr., got in touch with Kramer.  Kramer told him to check on Kenny, and Harold, Sr., found that Kenny was missing.  After describing the assault to two LaCrosse County deputies and showing them the location where it allegedly occurred, Kramer returned to his parents’ home at 6:30 a.m.

At trial, Kramer offered another story.  He claimed that on the morning of May 10, he was assaulted in a park in LaCrosse by a drug dealer named Mark for whom he had been making deliveries for the past few months.  He testified that he had angered Mark by discarding a bag of drugs and that after Mark and another drug dealer assaulted him, they told him, “We have your son and we’ll be in touch.”  Kramer claimed that he had fabricated his earlier story because he was embarrassed to tell anyone that he had been working for a drug dealer and was afraid that Mark might hurt Kenny if Kramer told the police what had happened.

Harold Kramer, Sr., testified that his watchdog would normally bark and growl when anyone other than himself, his wife, Kramer, or Buroker approached the home.  He also testified that he was a light sleeper and would have awakened if the dog had barked or growled between the time when he checked on Kenny at 3:00 a.m. and when he spoke to his son on the telephone at 4:30 a.m.

Shortly after Kramer returned to his parents’ home, the police found a typewritten note under Kenny’s mattress giving Kramer one week to marry Buroker or else he would never see his son again.  On May 13, the police searched the Hokah mobile home and found Buroker’s typewriter.  A BCA forensic scientist later concluded that the typewriter could have been used to type the kidnap note.  In an adjoining shed, police found letters from Kramer to Kenny’s mother.  They also found love letters from Kramer to Buroker under Kenny’s mattress at the Brownsville mobile home.  Several of these letters contained the misspellings “gonna” and “differant,” which also appeared in the kidnap note.

On May 18, 1999, an FBI special agent found Kenny’s body on a steep, heavily wooded hill behind the Brownsville mobile home.  Kenny’s body was partially enclosed in a plastic garbage bag that had been duct-taped to a tree. BCA agent Gary Kaldun and Houston County Coroner Lindsey Thomas were called to the scene.  At trial, both testified that the bag was cinched closed over Kenny’s head and attached to the tree with duct tape that ran around the back of his neck. According to Thomas, Kenny’s legs had broken through the bottom of the bag.  She also testified that the bag was “quite tight” around his head and that, with the duct tape attaching the bag to the tree, he would not have been able to breathe.  When they removed the bag, Kaldun and Thomas observed that there was duct tape covering Kenny’s mouth. 

Based on bruises across the back of Kenny’s neck, Thomas concluded that he was alive when he was duct-taped to the tree.  Following an autopsy, she determined that he died of suffocation within four or five minutes of being taped to the tree.  A BCA forensic scientist tested the garbage bag and duct tape for latent fingerprints but found none.  The scientist also stated that rain could have washed away any fingerprints.  Another witness testified that it had rained between the time of Kenny’s abduction and the time his body was found.

Shortly after Kenny’s body was found, FBI agents asked Kramer to come to the LaCrescent police station.  Kramer agreed and drove himself there.  When Kramer arrived, FBI Agent Daniel Craft and BCA Agent Kenneth McDonald asked Kramer if he would be willing to answer some questions.  Kramer agreed to do so, and McDonald read Kramer his Miranda rights.  Kramer stated that he understood those rights and acknowledged that, having them in mind, he was willing to talk to the agents.

Shortly thereafter, Craft informed Kramer that Kenny’s body had been found and began to ask him questions that suggested that Kramer had killed Kenny.  Approximately 20 minutes into the interrogation, Kramer told Craft and McDonald, “I wanna go home.  I want my mom and dad.”  Kramer alleges that at this point, he began to stand and Craft pushed him back down into his chair; the state argues that Craft did not push Kramer back into his chair.  At the omnibus hearing, Craft described his action as follows: “taking my hand and just put my hand down and he sat back down” and “I saw him stand to stand up and I just generally guided him down.”  Craft also admitted that he heard Kramer say, “I want to go home.”  The interrogation was videotaped.  The tape shows that Craft pressed Kramer back down into his chair when Kramer attempted to stand, telling Kramer, “Howey, sit down, sit down.”

Seconds later, the following colloquy took place:

[Kramer] I didn’t do it.  I gave you my statement.  I wanna go home!

 

[Craft] Your statement is not the truth though.

 

[Kramer] Yes it is!  I wanna go home, I wanna go home.

 

[Craft] Your statement –

 

[Kramer] Am I under arrest?

 

[Craft] You will be.  If you’re gonna insist on it, we’ll arrest ya.  I don’t wanna do that, Howey, okay?  I find – I find arresting somebody to be demeaning.  I’d much rather have you tell me what happened.

 

Later in the interview, after Kramer again expressed his desire to go home, Craft said, “No, no, understand one thing, okay?  You’re not gonna go home.  Alright?”

Kramer also alleges that, on at least three occasions during his interrogation, he told the officers that he did not want to talk to them.  The state asserts that at no time during his interrogation did Kramer say that he did not want to talk to the officers.  The relevant portions of the transcription of the interrogation read as follows:

[Craft] Tell me what happened.  Was it an accident? Howey please.  Is it possible that (inaudible) the other side of you, and you just don’t remember.

 

* * * *

 

[Craft] We did.  We did find who did it.  Now we need to know why.  The question is (inaudible), the question isn’t anymore.  I just want you to listen okay.  You do not have to talk.  I just want you to listen to me.  But the question is now is not who - - who did this.  The only question is why.

 

* * * *

 

[Craft] What happened (inaudible) I’m not going to think less of you as a person.  It happened.  You can’t (inaudible).  You can’t (inaudible) You don’t have to talk.  Just want you to listen to me a second.

 

On the videotape, it appears that Kramer said something during the first passage cited above, but what he said is inaudible.  During the second passage, Kramer interrupted Craft at the point marked “inaudible” and stated, “I don’t want to talk.”  When the videotape was played at the omnibus hearing, the court reporter transcribed this same passage as follows:

[Craft]  We did.  We do find out who did it.  Now we need to know why. The question. 

 

[Kramer] I don’t want to talk.

 

[Craft] No, don’t.  The question is not any more.  I just want you to listen.  Okay.  You do not have to talk.

 

During the third passage, Kramer again interrupted Craft, this time stating, “I’m done talking.”  The relevant portion of the transcript should, therefore, read:

[Craft] What happened (inaudible) I’m not going to think less of you as a person.  It happened.  You can’t --

 

[Kramer] I’m done talking (inaudible)

 

[Craft] You can’t (inaudible) You don’t have to talk.  Just want you to listen to me a second.

 

The district court found that, during the interrogation, Kramer “stated he did not want to talk anymore” on more than one occasion.

Approximately 50 minutes into the interrogation, Kramer was allowed to leave the room to go to the bathroom.  This break lasted less than two minutes, and Craft accompanied Kramer and waited for him outside the bathroom door. 

During the next two hours of interrogation, Kramer admitted to having killed Kenny.  At first, he told the agents that when he had returned home early in the morning of May 10, he found Kenny dead and had decided to hide the body in the woods and stage a kidnapping to get Buroker back.  Later, he admitted that when he returned home Kenny was sleeping and that he placed him feet-first into the garbage bag, tied and taped the bag around his neck, and left him in the woods.  Kramer said he never went back to check on Kenny but insisted that he never meant to kill him.  After Kramer made these statements, Craft and McDonald stepped out of the room for 10 to 12 minutes and then returned to conduct a “question-and-answer” session. Before the session started, McDonald asked Kramer if he had been read and understood his rights; Kramer affirmed that he had.  He also affirmed that he was willing to give his statement freely and voluntarily.  During the question-and-answer session, Kramer repeated his earlier confession and also admitted that, before taking Kenny from his parents’ home, he used Buroker’s typewriter at the Hokah mobile home to write the kidnap note.  At the conclusion of the session, Kramer was arrested.

Kramer moved to suppress his statements to the police, including his May 18 confession.  Following a contested omnibus hearing, the district court denied Kramer’s motion.  At trial, the videotape of the interrogation and question-and-answer session was played for the jury.

D E C I S I O N

I.

Kramer argues that the district court committed reversible error in denying his motion to suppress his May 18 statement because that statement was obtained in a custodial interrogation after he asserted his right to remain silent, in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).  The state argues that Kramer did not unambiguously or unequivocally invoke his right to remain silent and that even if he had, Miranda’s safeguards did not apply because he was not in custody at the time he made his confession.

Whether a defendant is “in custody” at the time of an interrogation is a mixed question of law and fact; an appellate court, therefore, applies “the controlling legal standard to historical facts as determined by the trial court.”  State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998) (citing Thompson v. Keohane, 516 U.S. 99, 112-13, 116 S. Ct. 457, 465 (1995)). 

In other words, an appellate court reviews a trial court’s findings of historical fact relating to the circumstances of the interrogation pursuant to the clearly erroneous test but makes an independent review of the trial court’s determination regarding custody * * * .

  

Id. (citation omitted).  Here, the district court concluded that Kramer was not in custody, and Miranda safeguards were not, therefore, implicated.  The court based this conclusion on its findings that (1) Kramer drove himself to the police station and was informed that he was not under arrest, (2) “the door to the interview room was never locked,” (3) he “received breaks,” and (4) he was “left alone and did not make an effort to leave.”  Based on our review of the record, we conclude that these findings are not clearly erroneous.  We turn, therefore, to our independent review of the district court’s legal determination that Kramer was not in custody.

Where, as here, the police do not arrest the defendant before beginning questioning, the court must look to all surrounding circumstances “to determine whether the restraints on the defendant’s freedom were comparable to those associated with a formal arrest.”  State v. Hince, 540 N.W.2d 820, 823 (Minn. 1995) (citations omitted).  The facts that Kramer voluntarily drove himself to the police station, agreed to answer questions when he arrived, and was expressly told that he was not under arrest suggest that the interrogation was not custodial, at least at the outset.  See Oregon v. Mathiason, 429 U.S. 492, 495-96, 97 S. Ct. 711, 714 (1977)  (determining interrogation to be noncustodial where defendant voluntarily came to police station and was expressly told that he was not under arrest); Wiernasz, 584 N.W.2d at 3 (same).  And the mere fact that an interrogation occurred at a police station “does not by itself require a determination that the questioning was custodial in nature.”  Wiernasz, 584 N.W.2d at 3 (citations omitted).  But, as Kramer notes, in both Mathiason and Wiernasz, an additional factor weighing against a determination of custody was that the defendants were allowed to leave without hindrance at the close of the interviews during which they made inculpatory statements.  Mathiason, 429 U.S. at 495, 97 S. Ct. at 714; Wiernasz, 584 N.W.2d at 5.  Here, Kramer was arrested at the close of his interview.

            The state suggests that Kramer was not in custody because he was given breaks during the interrogation.  But during the first break, Craft accompanied Kramer and waited for him outside the bathroom door.  This break lasted for less than two minutes.  The second break occurred at the end of the interrogation and before the question-and-answer session.  During this break, Kramer was left alone in the interrogation room.  Presumably this is what the district court was referring to in finding that Kramer was “left alone and did not make an effort to leave.”  But, as Agent McDonald admitted during the omnibus hearing, before this break Kramer already had made statements implicating himself in Kenny’s death.

Although the door to the interrogation room was never locked, Kramer was seated in the corner of the room opposite the door; because there was a table between him and the door and Agents Craft and McDonald were seated on either side of him, Kramer could not have left the room unless one of the agents stood to let him pass.  During the interrogation, Kramer repeatedly told the agents that he wanted to go home.  At one point, when Kramer told the agents, “I wanna go home.  I want my mom and dad” and began to stand up, Craft told him, “Howey, sit down, sit down,” while pressing him back down into his seat.  Seconds later, Kramer told the agents that he had given them his statement and wanted to go home.  When Craft told Kramer that his statement was not finished, Kramer asked if he was under arrest.  Craft responded, “You will be.  If you’re gonna insist on it, we’ll arrest ya.” Later in the interview, Kramer again expressed his desire to go home.  Craft responded, “No, no, understand one thing, okay?  You’re not gonna go home.  Alright?” 

The state argues that, from Craft’s statement that he would arrest Kramer if he insisted on it but that Craft did not want to arrest him, Kramer should have inferred that he was not in custody.  This assertion ignores the fact that Craft threatened Kramer with arrest if he was “gonna insist on it” and that he did so after Kramer repeatedly requested to be allowed to go home and almost immediately after Kramer tried to stand. 

In addition, Craft and McDonald made numerous statements to Kramer indicating that he was their prime suspect.  A clear statement from an officer to the person being interrogated that he is a prime suspect, while not dispositive, is another factor bearing upon the assessment of whether that individual was in custody but only if such statements would have affected how a reasonable person would perceive the restraints on his or her freedom.  Stansbury v. California, 511 U.S. 318, 325, 114 S. Ct. 1526, 1530 (1994).  Agent Craft began to accuse Kramer of killing Kenny almost immediately after telling Kramer that Kenny’s body had been found.   

            Reviewing all of the circumstances, we conclude that a reasonable person in Kramer’s position would believe that his freedom was restrained to a degree comparable to that associated with a formal arrest.  That Kramer voluntarily came to the police station, agreed to answer questions, and was informed that he was not under arrest suggest that he was not in custody.  But Kramer could not have left the interrogation room unless one of the agents stood to let him pass.  He made several requests to be allowed to leave; the agents ignored those requests.  He was pressed back into his chair when he tried to stand up, saying that he wanted to go home.   When he again expressed his desire to go home, he was threatened with arrest.  Further, throughout the interrogation the agents indicated to Kramer that he was the prime suspect.  We conclude that the district court erred in determining that Kramer was not in custody and that Miranda safeguards did not, therefore, apply. 

II.

Kramer argues that the district court erred in determining that he did not invoke his right to remain silent.  The district court “makes a factual finding of whether in fact the right to silence was invoked”; the reviewing court “examines the whole record to make sure the finding was not erroneous.”  State v. Johnson, 463 N.W.2d 527, 532 (Minn. 1990).  Here, the district court concluded that Kramer did not invoke his right to remain silent because his statements

seemed to involve only the question being asked.  When he stated he did not want to talk anymore, the officers normally said that he did not have to, but the defendant always did talk after he made this statement.

 

When, as here, a Miranda warning has been given,

the subsequent procedure is clear.  If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.  At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.  Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.

 

Miranda, 384 U.S. at 473-74, 86 S. Ct. at 1627-28; see also State v. Thieman, 439 N.W.2d 1, 5 (Minn. 1989) (stating that “once a person subject to a custodial interrogation asserts the right to remain silent, the interrogation must cease”) (citation omitted).  If the right “to cut off questioning” is not “scrupulously honored,” any subsequent statement made by the person in custody “cannot over his objection be admitted in evidence against him as a defendant at trial, even though the statement may in fact be wholly voluntary.”  Michigan v. Mosley, 423 U.S. 96, 100-04, 96 S. Ct. 321, 324-26 (1975).  The Supreme Court has noted that the police could fail to honor a suspect’s invocation of the right

either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind.

 

Id. at 105-06, 96 S. Ct. at 327.

The Minnesota Supreme Court has stated that “nothing short of an unambiguous or unequivocal invocation of the right to remain silent will be sufficient to implicate Miranda’s protections.”  State v. Williams, 535 N.W.2d, 277, 285 (Minn. 1995). As the supreme court noted in State v. Day, the relevant inquiry is

whether the suspect articulated his desire to remain silent sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be an invocation of the right to remain silent.

 

State v. Day, 619 N.W.2d 745, 749 (Minn. 2000) (citing Williams, 535 N.W.2d at 283 (stating that to invoke right, suspect must use language that “sufficiently articulate[s] the desire to remain silent.”)).  Thus, the question we must answer is whether a reasonable police officer, on hearing Kramer say,  (1) “I gave you my statement” and that he wanted to go home, (2) “I don’t want to talk,” and (3) “I’m done talking” would understand these statements as an unambiguous or unequivocal assertion by Kramer of his right to remain silent.

The state argues that Kramer’s statements were ambiguous or equivocal, comparing them to statements made by the defendant in Williams.  In that case, after being interrogated for approximately one hour, the defendant became very angry with one of the interrogating officers and stood up from his chair, saying, “I don’t have to take any more of your bullshit” and then walked out of the interrogation room.  Williams, 535 N.W.2d at 281.  The supreme court determined that this statement was ambiguous and equivocal because the defendant

never said that he wanted to stop answering questions.  In addition [the defendant] never exhibited a general refusal to answer any of the questions the detectives wanted to ask.

 

Id. at 284.  Here, Kramer did not refuse to answer any of the questions the agents asked, but unlike the defendant in Williams, he did explicitly state that he did not want to talk to them.  Further, the mere fact that he answered some questions or volunteered some statements on his own does not deprive him of his right to remain silent.  Miranda, 384 U.S. at 445, 86 S. Ct. at 1612. 

In State v. Jobe, the supreme court held that a murder suspect’s statement that he did not want to discuss the night of the murders but would discuss “lighter” subjects was not an unambiguous invocation of his right to remain silent because it reflected his willingness to talk to the police, even if only about particular subjects.  State v. Jobe, 486 N.W.2d 407, 416 (Minn. 1992).  But unlike the defendant in Jobe, Kramer’s assertion of his desire not to talk was not limited to certain subjects.  Nor did he suggest that he would speak to the agents if some particular condition were met.  Rather, by saying that he had given his statement and wanted to go home, that “I don’t want to talk,” and that “I’m done talking,” Kramer indicated that there were no questions that he wanted to answer.  See Day, 619 N.W.2d at 750 (holding that defendant’s statement that “I don’t want to tell you guys anything” was unambiguous and unequivocal invocation of right to remain silent because it indicated that there was “no action, event, or time that [the defendant] was willing to discuss” with the police); see also State v. Deases, 518 N.W.2d 784, 788 (Iowa 1994) (holding inmate asserted right to remain silent when, after being advised of his Miranda rights, he told correctional officers that he “did not want to talk” and “no disrespect but I don't want to talk about it”).  We conclude that Kramer articulated his desire to remain silent sufficiently clearly that a reasonable police officer in the circumstances would have understood his statements to be an invocation of his right to remain silent.

The state argues that, even if Kramer asserted his right to remain silent, his confession was properly admitted because there was an interval of 10 to 12 minutes between the interrogation session during which he asserted the right and the question-and-answer session.  Although interrogation must cease once a suspect invokes the right to remain silent, subsequent questioning is not necessarily impermissible.  Mosley, 423 U.S. at 101-03, 96 S. Ct. at 325-26.  As the state notes, Kramer restated his confession during the “question and answer” after (1) being given a break, (2) reaffirming that he had been read and understood his Miranda rights, and (3) agreeing that he was willing to give a free and voluntary statement.  It is not improper for the police to re-approach a defendant after he initially asserts his right to remain silent and ask him to reconsider his silence.  See Thieman, 439 N.W.2d at 5.  But courts have only allowed the admission of such statements when the “urging to reconsider is not in any manner compulsive on a defendant and respects his asserted right not to speak.”  Id. (quotation omitted).  In determining whether, in re-approaching a defendant and asking him to reconsider his silence, the police have respected the asserted right, courts look to (1) the length of time between when the defendant asserted his right and when the police ask him to reconsider, (2) whether the subsequent questioning was carried out by the same or different officers and in the same or different location as the earlier questioning, and (3) whether the defendant was again informed of his Miranda rights.  See, e.g., Mosley, 423 U.S. at 104, 96 S. Ct. at 327 (holding subsequent questioning permissible because it occurred after interval of at least two hours, defendant was questioned by different police officer, at different location, about unrelated crime, and defendant was given full and complete Miranda warning at outset of second interrogation); State v. Peirce, 364 N.W.2d 801, 806 (Minn. 1985) (allowing admission of statement made nearly three hours after defendant invoked right to remain silent because statement was taken at different location, by different officers, after fresh Miranda warning, and after defendant had slept); State v. Okegbenro, 409 N.W.2d 1, 3 (Minn. App. 1987) (allowing admission of statement where questioning resumed after almost 24 hours and, although same officer questioned defendant, defendant had slept, was in different location, and was given fresh Miranda warning).

As the Supreme Court noted in Mosley, the admissibility of statements obtained after a person in custody has decided to remain silent depends on whether his or her “right to cut off questioning” was “scrupulously honored.” 423 U.S. at 104, 96 S. Ct. at 326.  Here, Kramer was questioned for nearly two hours after asserting his right to remain silent and, during this interrogation, confessed to killing Kenny.  The police then gave him a 10-to-12-minute break before conducting the question-and-answer session, during which Kramer repeated his confession.  Although, at the beginning of the question-and-answer session, Kramer was reminded that he had been read his Miranda rights, he was not given a fresh Miranda warning.  Because Kramer was not given a fresh Miranda warning and was questioned by the same agents to whom he had asserted his right to remain silent in the same room where the interrogation occurred, we cannot conclude that the police scrupulously honored his asserted right to remain silent.

Because the police did not respect Kramer’s assertion of his right to remain silent during a custodial interrogation, we conclude that the district court erred by not suppressing his confession.

III.

 

Our decision that Kramer’s confession was admitted in error does not end our inquiry.  “A defendant is not automatically entitled to a new trial when his constitutional rights are violated,” and a conviction may stand “if the error committed was harmless beyond a reasonable doubt.”  State v. King, 622 N.W.2d 800, 809 (citations omitted).  In State v. Juarez, the supreme court explained that harmless-error analysis is actually “harmless-error impact analysis” and that the inquiry is not “whether a jury would have convicted the defendant without the error” but rather “whether the error reasonably could have impacted upon the jury’s decision.”  State v. Juarez, 572 N.W.2d 286, 291-92 (Minn. 1997) (citation omitted).  Thus, we look to the basis on which the jury rested its verdict to determine what effect the error had on the actual verdict; if the verdict rendered was “surely unattributable to the error,” the error is harmless beyond a reasonable doubt.  Id. at 292 (citation and quotation omitted). 

When applying the harmless-error standard, an appellate court reviews the record as a whole.  Id. (noting that although it is “not sufficient to find that without the error enough evidence exists in support of the conviction,” without reviewing the record as a whole “it would be impossible to discover whether the jury’s verdict was ‘surely unattributable’ to the erroneous admission”); see also King, 622 N.W.2d at 810-11 (Minn. 2001) (reviewing entire record to determine whether erroneously admitted plea testimony could have had an impact on the verdict).  We are cognizant that a full confession “is like no other evidence” and “may tempt the jury to rely upon that evidence alone in reaching its decision.” Arizona v. Fulminante, 499 U.S. 279, 296, 111 S. Ct. 1246, 1257-58 (1991).  But, based on our review of the entire record, we conclude that the jury’s guilty verdict was surely unattributable to the erroneous admission of Kramer’s confession.

The record contains substantial independent evidence of the facts in Kramer’s confession.  See Day, 619 N.W.2d at 751 (concluding that erroneous admission of custodial statements was harmless when record included substantial independent evidence of facts contained in those statements).  Kramer confessed to staging Kenny’s kidnapping to win Dawn Buroker back.  There was independent testimony about how distraught Kramer was when he and Buroker broke up and about his obsession with winning her back.  And the only “ransom” sought in the kidnap note was that Kramer and Buroker marry.  Kramer confessed that he prepared the kidnap note using the typewriter in the Hokah mobile home.  BCA agents testified that the typewriter could have been used to prepare the kidnap note and that the kidnap note contained the misspellings “gonna” and “differant,” which also appeared in several letters written by Kramer.  Kramer confessed to taking Kenny from his bed.  Harold Kramer, Sr., testified that his watchdog would normally bark and growl when anyone other than himself, his wife, Kramer, or Buroker approached the home.  He also testified that he was a light sleeper and would have awakened if the dog barked or growled.  Buroker’s alibi for the time of the abduction was corroborated while neither the alibi Kramer gave to the police nor the different one he asserted at trial had any corroboration.  And to accept the alibi that Kramer asserted at trial, the jury would have had to believe that the only recompense desired by a drug dealer whose drugs Kramer disposed of was that Kramer and Buroker marry.  See State v. Clark, 296 N.W.2d 359, 372 (Minn. 1980) (affirming murder conviction based on circumstantial evidence where defendant’s alibi was “inherently incredible”). 

There was also evidence of Kramer’s guilt that was unrelated to the facts in his confession.  The letter that Kramer showed Buroker, which threatened harm to Kenny if Kramer and Buroker did not start acting like a family, showed Kramer’s planning of the crime.  See State v. Howard, 324 N.W.2d 216, 222 (Minn. 1982) (concluding that even if defendant’s statements to police were admitted in error, error would have been harmless in light of independent evidence of planning of crime).

As the state acknowledges, the evidence other than Kramer’s confession is circumstantial.  But circumstantial evidence may be sufficient to support a murder conviction.  State v. Slowinski, 450 N.W.2d 107, 116 (Minn. 1990).  Here, the circumstantial evidence forms “a complete chain that leads directly to defendant’s guilt and makes any other theory unreasonable.”  State v. Gates, 615 N.W.2d 331, 337-38 (Minn. 2000).  And while the fact that “the evidence was sufficient, or even overwhelming, does not mean that the error was necessarily harmless,” overwhelming evidence of guilt “is a factor, often a very important one, in determining whether, beyond a reasonable doubt, the error has no impact on the verdict.”  Juarez, 572 N.W.2d at 291. 

The erroneous admission of Kramer’s confession could not, reasonably, have impacted on the jury’s decision.  The record contains substantial independent evidence of the facts contained in Kramer’s erroneously admitted confession as well as other evidence of his guilt unrelated to his confession.  Viewed as a whole, this evidence points overwhelmingly to Kramer’s guilt.  We conclude, therefore, that the jury’s guilty verdict was surely unattributable to the admission of Kramer’s confession.

IV.

            Kramer next argues that the district court erred in granting the state’s motion to dismiss a charge of second-degree manslaughter and that he was prejudiced because the jury was not instructed on that offense.  Second-degree manslaughter is defined as causing the death of another by the “person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes the chances of causing death or great bodily harm to another.”  Minn. Stat. § 609.205(1) (1998).  After reviewing the evidence, the district court concluded that it could “find no basis whatsoever” for calling Kramer’s actions culpable negligence.  Kramer argues that the jury could have concluded that he did not intend to kill Kenny when he placed him in the bag and left him in the woods and that he was, therefore, only culpably negligent for Kenny’s death.

Upon prosecution the accused “may be convicted of either the crime charged or a lesser offense, but not both.”  Minn. Stat. § 609.04, subd. 1 (1998).  Under section 609.04 “[e]very lesser degree of murder is intended to be characterized as an ‘included offense.’” State v. Leinweber, 303 Minn. 414, 421, 228 N.W.2d 120, 125 (1975).  In a homicide case, “it is preeminently the district court’s duty in the exercise of its discretion to determine what lesser degrees of homicide to submit to the jury.”  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996) (citation omitted).  Similarly, the refusal to give a requested instruction “lies within the discretion of the district court.”  Id. (citation omitted).  But where the evidence warrants an instruction on a lesser-included offense, “the trial court must give it.”  Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986).  Failure to give an appropriate instruction is a ground for reversal only if the defendant is prejudiced thereby.  Id. 

When the defendant requests that the jury be instructed on a lesser-included offense, a two-part test is applied:

(1) whether the lesser offense is necessarily included under Minn. Stat. § 609.04, and (2) whether the evidence adduced at trial would reasonably support a conviction of the lesser degree and at the same time is such that a finding of not guilty of the greater offense would be justified.

 

Cole, 542 N.W.2d at 50.  The parties agree that second-degree manslaughter is a lesser-included offense of the other homicide charges of which the jury found Kramer guilty; namely, second-degree intentional murder under Minn. Stat. § 609.19, subd. 1(1) (1998), and second-degree felony murder under Minn. Stat. § 609.19, subd. 2(1) (1998), with a predicate underlying felony of child endangerment under Minn. Stat. § 609.378, subd. 1(b)(1) (1998).  The state argues that the district court was within its discretion in concluding that no reasonable jury could convict Kramer of second-degree manslaughter and acquit him of the greater offenses, in particular second-degree felony murder.  We agree. 


Second-degree felony murder occurs when a person causes

the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense * * * .

 

Minn. Stat. § 609.19, subd. 2(1).  Felony child endangerment is defined as

intentionally or recklessly causing or permitting a child to be placed in a situation likely to substantially harm the child’s physical, mental, or emotional health or cause the child’s death.

 

Minn. Stat. § 609.378, subd. 1(b)(1).  Even without Kramer’s confession, the evidence supports the determination that Kramer (1) placed duct tape over Kenny’s mouth, (2) put Kenny in a garbage bag feet first, (3) pulled the bag shut over Kenny’s head and sealed it with duct tape, (4) attached Kenny to a tree with duct tape that ran so tightly around the back of his neck that he could not breathe, and (5) did not go back to check on Kenny during the following eight days before the body was discovered.  This evidence reasonably supports a finding that Kramer was guilty of child endangerment; he intentionally or recklessly placed his son in a situation likely to substantially harm his physical, mental, or emotional health or cause his death.  In fact, the jury also found Kramer guilty of second-degree intentional murder, indicating that it believed he acted not only recklessly but also with intent “to effect the death” of his son.  Minn. Stat. § 609.19; see State v. Merrill, 274 N.W.2d 99, 105 (Minn. 1978) (noting fact that the jury convicted defendant of first-degree murder indicated it believed defendant acted not only with requisite intent but also with premeditation and thus instruction on third-degree murder was not required).  The record does not reasonably support a conviction of second-degree manslaughter because the jury could not, based on the evidence, find that Kramer merely created an “unreasonable risk” and “took a chance” of causing Kenny’s death or great bodily harm.  The district court acted within its discretion in dismissing the second-degree manslaughter charge.

            Affirmed.

           

 


AMUNDSON, Judge (concurring specially)

I, too, am troubled by the investigating agents' lack of respect for Kramer’s constitutional rights during their interview. I write separately to clarify the standard for harmless error in a case such as this one when there is overwhelming concomitant evidence and permissible inference providing a basis for conviction.

In the tradition of State v. Day,[1] the majority has construed for function the language of State v. Juarez.[2]  I am afraid the literal extrapolation of Juarez's language would preclude ever finding harmless error in applicable cases.  Indeed, both Juarez, and its progeny, State v. King,[3] read literally, are overbroad.  To ask the question of whether improperly admitted evidence “could have impacted upon the jury’s decision”[4] would prevent ever finding harmless error because nearly anything “could have” had an impact.  Under that interpretation, it is impossible to logically preclude anything from having such effect.  Certainly, that cannot be the rule; we cannot be invited to apply these decisions in such an absurd way and thus eviscerate the rule on harmless error.

The majority, as the supreme court did in Day, has properly focused on the fact that evidence contained in the erroneously admitted statement was corroborated by evidence independent of the confession.  See Day, 619 N.W.2d at 751.  The question is not whether the jury contemplated the erroneously admitted evidence, or whether it is a theoretical possibility that the jury may have considered the erroneously admitted evidence, but whether the error is harmless beyond a reasonable doubt. Id. at 750.  Here, the remaining inculpatory evidence is overwhelming and the state has demonstrated that the verdict was not attributable to the erroneously admitted confession.

In Day, independent evidence showed that the defendant had been seen walking in the direction of the victim and had spoken with her shortly before the murder.  Id. at 751.  There was physical evidence indicating that Day had intercourse with her around the time of her death, and Day had been seen with the victim’s wedding rings.  Id. There was also evidence that his shoes could have made the footwear impressions that were found on the victim’s face.  Id.  The evidence in this case is no less convincing.

Here, the evidence showed that there was no forced entry into the trailer from which young Kenny was taken.  Indeed, Kenny was taken by someone so familiar to the household that his presence did not alert their dog.  The dog never barked.  Ample evidence was presented that Kramer wrote the ransom note.  This included the specific misspellings attributable to Kramer and, like the footprint in Day, the possible match between the typewriter used to type the ransom note and the one found in his trailer.  Kramer also had absolutely no credible explanation for his whereabouts from 3:00 to 4:15 in the morning on the night Kenny was abducted.

Most importantly, there was also significant independent evidence of Kramer’s motive: his unrequited passion for the woman with whom he had a longstanding meretricious relationship.  In his statement, Kramer explained that he staged the kidnapping to garner Dawn’s sympathy in hopes that she would reunite with him.  But there were also other numerous examples, independent of the confession that told of Kramer’s obsession and willingness to use the threat of harm to Kenny to accomplish his ends.

Most significant is the unbelievably preposterous web of lies, an opera bouffe, Kramer wove in a futile attempt to avoid the truth.  His mendacity was apexed only by the cowardly self-service of his murderous act.  Before Kenny’s disappearance, numerous notes appeared demanding that Kramer and Dawn reunite—one of those notes threatened Kenny's safety if this did not occur.   These notes chillingly foretold the events to come, including the strikingly similar “ransom” note, where the only ransom requested was for Kramer and Dawn to reunite.  Kramer's attempts to connect these specious notes with the crime being committed by another disintegrated at trial. 

This court usually avoids making credibility determinations.  In certain limited circumstances, however, it is appropriate.  See, e.g. State v. Griller, 583 N.W.2d 736, 741-42 (Minn. 1998) (incredibility of defendant’s account of killing made new trial based on an unchallenged, but erroneous jury instruction, unjust.) This is one of those cases.  The question is not whether we believe Kramer’s story, but whether the incredible nature of the story contributed to his conviction by providing the jury with independent evidence of his guilt.  Here, it is clear that, beyond any reasonable doubt, the jury verdict was premised upon the powerful substantive evidence of Kramer’s guilt—including the absurdity of the threatening notes, ransom letters, and fabricated assault stories.

In Day, the court alluded to evidence that was both within the confession, and independent of it—including the presence of Day’s semen in the victim.  619 N.W.2d at 751.  But while this evidence tended to show guilt, none of it actually refuted Day’s version of the events.  For example, Day explained the presence of his semen by claiming that he had intercourse with the victim’s body after she had been killed (or been mortally wounded) by somebody else.  Id. at 748-49.  The presence of his semen therefore did not, per se, indicate guilt.  It was only the independent existence of that evidence combined with the jury’s likely disbelief of Day’s tenuous explanation that allowed the court to conclude that the verdict was surely unattributable to the error in admitting Day’s statement.  Here, we have a similar situation except that, as far-fetched as Day’s story was, Kramer’s is even more preposterous.

Even without the confession, ample evidence shows that, on the night Kenny was betrayed and murdered, Kramer completed his wicked plan.  The lies, deceit, obsessions, and passions drove Kramer to his sleeping defenseless son.  He lifted him, stuffed him in a bag, removed him to the woods, taped him to a tree, and left him to die in a hideous struggle for breath.  There was no potential kidnapper, no ransom note, and no other assailant.  There was no stranger coming into the home that night.  The dog never barked.  The only sound was the muffled cries of a terrified little boy.

                       



[1] 619 N.W.2d 745 (Minn. 2000).

[2] 572 N.W.2d 286 (Minn. 1997).

[3] 622 N.W.2d 800 (Minn. 2001).

[4] Juarez, 572 N.W.2d at 292; see also King, 622 N.W.2d at 809