This opinion will be unpublished and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
State of Minnesota,
File No. K3-00-400
John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 325 Park St., Suite 500, St.Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 15 West Kellogg Boulevard, Suite 50, St.Paul, MN 55102 (for respondent)
Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Willis, Judge.
Appellant contends the district court erred by permitting testimony at trial about unrecorded statements he made during interrogation. The district court concluded that no substantial violation of the Scales recording requirement occurred when, following appellant’s request, an interviewing police officer turned off the recorder for five minutes. We affirm.
Appellant Xiong Chang was arrested on gun possession charges after police searched his residence and found a sawed off shotgun under a mattress in his bedroom. Officer Richard Straka’s interview of Chang later that night was tape recorded pursuant to State v. Scales, 518 N.W.2d 587 (Minn. 1994). Twenty-seven minutes into the interview, Chang asked Straka to turn off the tape recorder saying, “I want to talk to you with that thing off. * * * I’ll tell you straight out you turn that thing off.” Straka informed Chang that he was required by law to leave the tape recorder on and explained to Chang that whatever he said while the tape recorder was turned off could be still used against him. Straka explained that he would continue taking notes during the time the tape recorder was off and that after the tape recorder was turned back on, Straka would confirm his notes with Chang. Straka then turned the recorder off for five minutes. After Straka resumed the recording, Chang confirmed that Straka’s notes accurately summarized their unrecorded conversation.
At the Rasmussen hearing, Chang moved to suppress evidence of the incriminating statements made during the unrecorded portion of the interrogation based on the Scalesrecording requirement. Chang claimed that during the unrecorded portion of the interrogation, Straka threatened him if he did not cooperate. The district court concluded that no violationof the Scales requirement occurred because: (1) Chang asked to stop the recording; (2) Straka informed Chang that his off-the-record statements could be used against him; (3) Chang verbally confirmed the off-the-record discussion when the recording resumed; and (4) Chang did not request an attorney or claim that he did not understand his legal rights. This appeal followed.
Chang contends that district court erred by failing to suppress his statements to police because the failure to record those statements was a substantial violation of the recording requirement in State v. Scales, 518 N.W.2d 587 (Minn. 1994). The trial court's factual findings are subject to a clearly erroneous standard of review, but whether a “substantial violation” of the Scales requirement occurred is a legal question that we review de novo. State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).
“[A]ll custodial interrogation * * * shall be electronically recorded where feasible.” Scales, 518 N.W.2d at 592. Any statements made during an unrecorded interrogation may be suppressed when the violation of the recording requirement is substantial. Id. The determination of whether a violation was substantial is made on a case-by-case basis considering all of the relevant circumstances bearing on substantiality, including those set forth in sections 150.3(2), (3) of the Model Code of Pre-Arraignment Procedure. Id. The non-exclusive list of factors includes the willfulness of the violation, the extent of the deviation from lawful conduct, the extent to which the violation was likely to lead to a misunderstanding of legal rights, and the extent to which suppressing the statement would “tend to prevent [other] violations.” Critt, 554 N.W.2d at 95.
Chang argues that, because Straka intentionally stopped recording, as opposed to turning off the tape recorder by mistake, his violation was willful. The definition of willful is “done on purpose” or “bent on having one’s own way.” The American Heritage Dictionary of the English Language 2042 (3d ed. 1996). Here, although his action was willful in that he voluntarily turned off the recorder, it was not done to accomplish perfecting his own way or desire. To the contrary, Straka hesitated to stop the recording and only agreed to do it after Chang persisted with his request to speak with the tape turned off. Straka merely accommodated Chang. The fact that Straka stopped the recording for five minutes, at Chang’s request, where the substance of Chang’s unrecorded statements was repeated during the subsequent recording, and where Straka informed Chang that his unrecorded statements could be used against him does not rise to the level of a “gross, willful and prejudicial” violation contemplated by the Scales rule. Scales,518 N.W.2d at 593. Furthermore, there was nothing unlawful about Straka accommodating Chang’s request to turn off the recorder, Chang does not contend that he did not understand his rights, and the suppression of Chang’s statements would not prevent future violations as Straka would not have turned off the recorder had appellant not asked.
The “primary purpose” of the recording requirement is not to help criminal defendants or the state, but to assist the court in resolving evidentiary disputes and more accurately determine underlying facts. State v. Thaggard, 527 N.W.2d 804, 807-08 (Minn. 1995). The underlying rationale of the recording requirement is to avoid factual disputes about a claim that police officers violated a suspect's Miranda rights. State v. Miller, 573 N.W.2d 661, 674 (Minn. 1998). But a "substantial violation" can be found even when no constitutional right has been violated. Critt, 554 N.W.2d at 95. Since Chang does not claim that his constitutional rights were violated, the issue becomes whether the failure to record the five-minute portion of Chang’s interrogation undermined the district court’s ability to evaluate the underlying facts concerning Chang’s statement.
Here, the two recorded segments of Chang’s interrogation allowed the district court to make an accurate evaluation of facts leading to Chang’s statement, and do not support Chang’s contention that, when he requested that Straka turn off the tape, he thought Straka wanted information about “shootings” and “robberies.” Immediately before Chang’s request to stop the recording, Straka was questioning Chang about the shotgun found at Chang’s residence. Chang then asked Straka to turn the tape recorder off so that he could “tell the truth.” When recording resumed after a five-minute break, the conversation about the gun continued, and Chang confirmed his unrecorded statements about his possession of the gun. The two recorded segments of the interrogation refute Chang’s version of the facts; there is no indication that Straka turned off the recorder because he wanted to obtain more information about “shootings” and “robberies.”
Additionally, Straka followed the procedure outlined in State v. Schroeder that:
a police officer who, for whatever reason, has conducted a brief unrecorded custodial interrogation [should] promptly document during a subsequent recorded interrogation the following information about the unrecorded interrogation: that the Miranda warning was given, that Miranda rights were not asserted, what unrecorded questions were asked, what responses were given by the suspect, that the suspect admitted voluntariness, and what reason existed for not having recorded the interrogation.
560 N.W.2d 739, 741 (Minn. App. 1997), review denied (Minn. May 20, 1997) (emphasis added).
The Scales recordingrequirement was not substantially violated in this case because the two recorded segments of the interview, combined with other circumstances of this case (the police found a sawed-off shotgun under the mattress in appellant’s bedroom and he was identified by a robbery victim), allowed the court to accurately evaluate the facts underlying the appellant's statement.
Chang also makes two pro se claims. This court generally declines to consider matters not argued and considered in the court below, Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996), however, we may do so for issues raised in pro se supplemental briefs in criminal cases. Dale v. State, 535 N.W.2d 619, 624 (Minn. 1995). Chang first claims ineffective assistance of counsel because his attorney never gave him the police reports and witness statements to review in preparation for trial. But later in his testimony Chang confirmed that he had the opportunity to go over the police reports and statements with his attorney. Chang also claims that when he said, “that’s it, I, I didn’t shoot nobody, man,” he made a request for counsel or to remain silent. However, later in his testimony he admitted that he did not ask for counsel or request the interview be stopped. Chang’s claims of ineffective assistance of counsel and violation of his right to remain silent are unsupported by the record and therefore are rejected.